the big chill - The Law Society of Ireland

Jim’ll fix it!
James MacGuill wins
the day in the European
Court of Human Rights
Working abroad
The latest information
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Winning ways
Gazette team scoops
top gong at national
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LAW SOCIETY
GAZETTE
€3.75 Jan/Feb 2011
THE BIG CHILL
The ‘chilling effects’ of costs
for public interest litigation
S
ES AR
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L egaL R equiRements
The European Arrest
Warrant in Ireland
Remy Farrell BL and
Money Laundering and
Terrorist Financing Act
2010: Annotated
Anthony Hanrahan BL
Dr Max Barrett (Solicitor)
Price: €140
Price: €80
Irish Criminal Justice:
Theory Process and
Procedure
Principles of Irish
Employment Law
Dr Vicky Conway, Dr Yvonne Daly,
Jennifer Schweppe
Dr Brenda Daly,
Dr Michael Doherty
Price: €60
Price: €80
Cassidy on the
Licensing Acts
Third Edition
EU Law in Ireland
Constance Cassidy SC
Price: €60
Dr Elaine Fahey
Price: €325
C Oming s OOn
The Probate Handbook
Tim Bracken BL and
Housing Law,
Rights and Policy
Margaret Campbell (Solicitor)
Dr Padraic Kenna
Price:
Price: Aprrox €35
Approx €220 (HB) | €170 (PB)
To order email: info@claruspress.ie
Telephone: 01 415 0439 Fax: 01 454 9265
For more information on these and other titles please
visit our website: www.claruspress.ie
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
President’s message
insurance crisis
is major concern
I
t is with profound gratitude and great respect for you,
my colleagues, that I write my first president’s message.
The economic tsunami and the horrendously stressful and
expensive insurance renewal process, for many colleagues, has
caused enormous levels of anxiety, upset and anger, together
with huge financial pressure – which I readily acknowledge
and with which I empathise.
Some colleagues have told me that they were subjected
to totally unacceptable and unreasonable behaviour from
insurers in the renewal process – for the last two years
especially. The present system has also created great
financial, administrative and time pressure on many
colleagues. I know the renewal process is also driving some
firms out of existence by the high cost of insurance, and
many practitioners feel a strong sense of isolation when
applying for professional indemnity insurance (PII) renewal.
PII survey
A PII survey has now been sent by the Society to every firm
in the country, and I would earnestly request that completed
forms, which are confidential, be returned immediately so that
they can contribute to major improvements in the PII renewal
process for next December. Replies to the survey will be
examined at a Council meeting on 18 February 2011. Please
be assured that the insurance crisis is the major concern of the
Society at present, and the Society is determined to ensure if
we possibly can that you, our colleagues, do not face a similar
renewal process next December.
On a different note, I wish to organise conferences during
the year for sole practitioners and young solicitors to identify
ways in which the Society can do more to assist them. I am
encouraging the Society’s work – which is already underway
– to develop a mentoring system for newly qualified solicitors.
In addition, I will be examining ways in which the Society can
assist colleagues who wish to retire.
LRC reports – guidelines
Last December, the Law Reform Commission published a
number of excellent reports and I would like to refer, briefly, to
two of these.
The first, reference 97-2010, entitled Consolidation and
Reform of the Courts Acts, recommends that the monetary
jurisdiction limit of the Circuit Court should be increased
to €100,000, as intended by section 13 of the Courts and
Court Officers Act 2002, subject to a lower limit of €50,000 in
personal injury claims. The jurisdiction of the District Court
would be increased to €20,000. I am asking the Litigation
Committee for their views on these recommendations.
The second report, reference
98-2010, entitled Alternative
Dispute Resolution – Mediation
and Conciliation, sets out a
statutory framework for
ADR applying to individuals,
corporate and state bodies. It
contains 108 recommendations
and attaches a draft bill, which
sets out:
a)The general principles
applying to mediation (for
example, confidentiality,
privilege, limitation periods
and enforceability),
b)The role of the court,
c)The duty of solicitor, and
d)The obligations on the
litigant.
“The PII renewal
process is driving
some firms out of
existence”
I am asking a sub-committee of the Arbitration and Mediation
Committee to issue guidelines to the profession on the use of
mediation and conciliation in practice.
Congratulations to the Gazette
This is my first president’s message and I am delighted
that it is being published in Ireland’s ‘Business-to-Business
Magazine of the Year’. At its December meeting, the Society’s
Council sent its warmest congratulations to Gazette editor
Mark McDermott and all his team for their great success in
taking the top award in their category, as determined by the
Magazines Ireland judges (see p12 of this issue). It reflects
well, not only on the Gazette team, but on the Society and the
profession to have the excellence of our flagship publication
nationally recognised in this way. With a determination not
to rest on even those impressive laurels, the team has now
produced the refreshing new design you see this month.
Contact me
I would encourage any of you with concerns or suggestions
to contact me at any time. In particular, in addition to meeting
bar associations, I would be delighted to meet any other
groups or firms of solicitors who wish to discuss the massive
challenges we face as a profession.
Mary McAleese has said: “Ireland’s task is to build on all
that was good in our success and to make our disappointments
a springboard to reimagine ourselves and our society.” That
should also be the aim of our profession. G
John Costello
President
1
Law Society Gazette
Contents
Volume 105, number 1
Subscriptions: €57
Editor: Mark McDermott FIIC
Deputy editor: Dr Garrett O’Boyle
Designer: Nuala Redmond
Editorial secretaries: Catherine Kearney,
Valerie Farrell, Peter Downey
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Editorial board: Michael Kealey (chairman),
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Ken Murphy, Andrew Sheridan
The Law Society of Ireland can accept
no responsibility for the accuracy of
contributed articles or statements appearing
in this magazine, and any views or opinions
expressed are not necessarily those of the
Law Society’s Council, save where otherwise
indicated. No responsibility for loss or distress
occasioned to any person acting or refraining
from acting as a result of the material in
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authors, contributors, editor or publishers. The
editor reserves the right to make publishing
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refuse publication or to edit any editorial
material as seems appropriate to him.
Professional legal advice should always be
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www.gazette.ie
Jan/Feb 2011
Gazette
Law Society
Law Society Gazette
RegularS
1 President’s message
4 News
47 Briefing
Council report: 10 December 2010
Practice notes
Solicitors Disciplinary Tribunal
Legislation update: 13 November –
31 December 2010
51 One to watch
52 Justis update
54 Eurlegal: ECJ upholds fine for abuse of
dominant position
12 Analysis
12 News feature: everyone’s a winner
baby, that’s no lie
14 News feature: international work
opportunities for lawyers
16 Human rights watch: school’s
admission policy may discriminate
against Travellers
47
48
49
50
58 Professional notices
62 Recruitment advertising
18 Comment
18 Viewpoint: why is forced labour not
considered a crime in Ireland?
40 People and places
Minister for Justice at parchment
ceremony; Mayo solicitors’ annual
dinner; SYS conference; Law Society
Diploma Programme
64 Captain’s blawg
Wild, weird and wacky stories from
legal ‘blawgs’ and news media around
the world
45 Books
45 Book reviews: Tax Book 2010;
The End of Lawyers? and District Court
Practice and Procedure in Criminal
Proceedings
46 Reading room: a new series focusing
on the traditional and electronic Law
Society library services
64
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The Law Society Gazette is a full participating
member of the Press Council of Ireland and
supports the Office of the Press Ombudsman.
This scheme, in addition to defending the freedom of the press, offers readers a quick, fair
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Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Contents
24
working abroad
information
wins
James MacGuill
European
the day in the
Rights
Court of Human
The latest
nal job
on internatio lawyers
for
possibilities
Gazette team
national
top gong at
magazine awards
jaN/feb
2011
Thinkstock
20 The big chill
the biG chiLL
Law Society
cts’ of costs
the ‘chilling effe
rest litigation
for public inte
of ireland
new design
cover.indd
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IN STO
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20 OF BUS
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€3.75 jan/feb
‘B
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Vol 105 No
Gazette •
Law Society
Law Society
Cover pic:
cover story
winning ways
scoops
Gazette
jim’ll fix it!
32
26/01/2011
22:25
1
Protective costs orders – or orders at the outset of litigation that
provide a plaintiff with certainty on the costs outcome – may provide
the means of overcoming the so-called ‘chilling effect’ of costs for public
interest litigation. Jo Kenny turns up the heat and calls for a more
nuanced approach in public interest cases
features
24 Jim’ll fix it
In a David versus Goliath confrontation,
solicitor James MacGuill took on the
might of the State – and three senior
counsel – in the Grand Chamber of
the European Court of Human Rights.
Colin Murphy spoke to him about
litigating to win
28 Lend me arrears
The legal approach to residential
mortgage default has changed,
and the updated Code of Conduct on
Mortgage Arrears is likely to have a
significant effect – at least in the short
term – on the number of residential
mortgage suits. Cian O’Sullivan drops
off the keys
12
32 Lay-off my case
There is a misconception among
many employers that employees
who have been placed on lay-off
are no longer entitled to be paid.
Richard Grogan clocks in and puts
in the overtime
36 Defame game
The largest libel award in Irish –
and perhaps European – history
was made last November in the
prominent case of Kinsella v Kenmare.
However, Emma Keane says that
it’s regrettable that the assessment
of damages was not removed from
the responsibility of the jury by the
Defamation Act 2009
HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7.
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All cheques should be made payable to: Law Society of Ireland.
COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9,
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HAVE YOU MOVED? Members of the profession should send change-of-address details to:
IT Section, Blackhall Place, Dublin 7, or to: customerservice@lawsociety.ie
6
Get more at lawsociety.ie
Gazette readers can access back issues of the
magazine as far back as Jan/Feb 1997, right up
to the current issue at lawsociety.ie.
You can also check out:
• Current news
• Forthcoming events, including the Law Society’s
annual conference in Powerscourt, Co Wicklow
on Friday 6 and Saturday 7 May 2011
• Employment opportunities
• The latest CPD courses
… as well as lots of other useful information
3
4
Law Society Gazette
News
www.gazette.ie
Jan/Feb 2011
Nationwide
Kevin O’Higgins
is junior vicepresident of the
Law Society
and has been a
Council member
since 1998
Association
president
appointed
judge
kildare
Sad death of
Gordan Holmes
limerick
It was with great sadness that
we heard in late January of the
passing of one of the biggest legal
names in the country, Gordon
Holmes – co-founder of the
eponymous Limerick City firm,
Holmes O’Malley Sexton, that
proudly bears his name. The
huge funeral attended by the
president and director general of
the Law Society, and many others
from Dublin, was a tribute to the
esteem in which he was held in by
the legal profession. (The Gazette
will be publishing an appreciation
in the March issue.)
DUBLIN
The DSBA has moved firmly into
the 21st century. Pioneered by
William Aylmer and his practice
management committee, they
have set up a LinkedIn group
that will operate as a forum for
exchanging views, and answering
queries, and as a means of
interacting with colleagues. It
already has 119 members. Says
president Stuart Gilhooly: “ If
you are already on LinkedIn and
are a member of the DSBA, then
please join. If not, it’s the simplest
thing in the world. Simply log
on to www.linkedin.com and the
process is explained. It is not
intrusive and you can be active,
Christmas dress dance
mayo
Pic: John O’Grady
Colleagues throughout the county
have welcomed the appointment
of their bar association president,
Paul Kelly, as a judge of the
District Court. Paul has served as
a councillor on Kildare County
Council for 11 years and on
Leixlip Town Council for more
than 20 years. He has operated
his own legal practice in Leixlip
since 1982. His appointment
follows the resignation last July of
District Court judge John Neilan.
Meanwhile, the work of the
association continues, with
Andrew Cody continuing to
organise excellent CPD offerings.
DSBA joins the digital age with a bang
At the Mayo Solicitors’ Bar Association annual Christmas dress dance were
(l to r): Charlie Gilmartin, Judge Mary Devins and Sandra Murphy
Mayo Solicitors’ Bar Association
held a very successful annual
Christmas dress dance in
Lisloughrey Lodge, close to
Cong Castle. The food and the
accommodation were exquisite.
As with Dublin, the roads were
extremely icy and dangerous,
though that didn’t stop the
intrepid travellers from Dublin,
including Law Society president
John Costello, Michael Quinlan
and, of course, that veteran
traveller Ken Murphy, together
with their partners. As one of the
president’s right-hand men, I was
delighted to be present, being a
regular attendee at Mayo dinners
in any event.
Says James Cahill: “Fine
Gael leader Enda Kenny was the
guest of honour. He was relaxed,
engaging and proved to be an
excellent speaker. Mr Kenny and
his wife Fionnuala even drove
Stuart Gilhooly and his wife
Fidelma to Ashford Castle in the
early hours on their journey home
to Castlebar through the ice and
snow.”
One day’s CPD and a general
meeting on regulatory matters has
been scheduled for 25 February.
These regulatory matters, aspects
of which are continuing to cause
great distress in this part of the
country, are sure to lead to a lively
debate. All solicitors’ officers in
Mayo will close for Easter from 20
April to 26 April, inclusive.
inactive or simply observe – it’s up
to you. Those who have joined so
far seem to be enjoying it.”
In addition, Stuart has become
the first DSBA president to join
Twitter. His address is www.
twitter.com/DSBAPresident and
he will be updating, musing and
generally tweeting merrily if you
want to follow.
On a more serious note, we are
all acutely aware of the passing of
the recent insurance round, which
many of us found to be another
harrowing experience. Time goes
by and usually the anger and
frustration becomes less acute.
However, we cannot simply bury
our heads in the sand and just
hope it gets better, because it
won’t without asking the hard
questions.
Why was it so bad? How can
we make it better? What are the
alternatives? How can we regain
control of the process? These
are matters of great concern to
the DSBA and the profession
generally.
And many more questions
need to be answered. With this
in mind, the DSBA is delighted
to announce a forum that will
mirror similar events last year.
We are lucky to have insurance
guru Ray Brown of Marsh, John
Elliot (the Law Society’s director
of regulation) and Stephen Park
(insurance consultant), among
others, to give their views on
the last period – and how we
can improve the process for the
next year. It will take place at the
Radisson Golden Lane at 6.30pm
on 17 February. Admission is free
and spaces are limited, so please
book now by contacting Maura
Smith at maura@dsba.ie or at 01
476 3824.
The DSBA hosted a dinner for
the entire Dublin-based judiciary
drawn from the District, Circuit,
High and Supreme Courts.
This unique legal occasion was
also attended by many Dublin
practitioners.
9Job-seeking workshops
10Reducing legal costs is
government’s goal
10Seamus Heaney’s Writer &
Righter
New president for NI society
working abroadtion
winning ways
Gazette team scoops
top gong at national
magazine awards
Gazette
jim’ll fix it!
wins
James MacGuill
n
the day in the Europea
Rights
Court of Human
The latest informa
job
on international
lawyers
possibilities for
2011
€3.75 jan/feb
iLL
the biG ch
cts’ of costs
the ‘chilling effe litigation
for public interest
Law Society of ireland
The new president of the Council of
Bars and Law Societies of Europe
(CCBE) is Mr Georges-Albert Dal, who
took office on 1 January 2011. He is
the former president of the Federation
of European Bars
6 Changes to pension rules
6 New body for employment lawyers
7 Media spotlight – Lorna Groarke
7 Financial elder abuse seminar
9 Emerging human rights issues
Your new-look
Gazette!
jaN/feb 2011
New CCBE
president
In News this month...
• Vol 105 No 1
Two-thirds of consumers would
prefer not to buy their legal
services through non-legal
brands, according to a survey
of 2,000 clients by the lawfirm referral service Contact
Law.
The poll results, published
in the England and Wales
Law Society Gazette, found
that 66% of consumers said
they would not be happy to
buy legal services through
non-legal brands, such as the
AA or Tesco, while 34% said
they would. The vast majority
(84%) said that service
was more important than
price when purchasing legal
services.
News
Law Society Gazette
Consumers
reject nonlegal brands
Jan/Feb 2011
new design cover.indd
Mr Brian Speers is the new President of the Law Society of Northern Ireland,
(l to r): Alan Hunter (chief executive), Imelda McMillan (junior vice-president),
Brian Speers (president) and Norville Connolly (senior vice-president)
Solicitor’s Joycean discovery?
“Dear dirty Dublin” is a phrase
we associate with James Joyce.
He uses it in his set of short
stories Dubliners (1914) and
in Ulysses (1922). Scholars
acknowledge that the term is not
Joyce’s, but no one has been able
to ascribe the description to any
written source with confidence –
until now.
Dublin solicitor and librarian
Hugh M Fitzpatrick has
proposed that credit for the
phrase should go to one of
Ireland’s most eminent Victorian
lawyers, James Whiteside
(1804-1876). Joyce referred to
Whiteside in Ulysses as “a master
of forensic eloquence”.
The evidence for Fitzpatrick’s
Child Law shortlisted
The Irish Association of Law Teachers’ conference has shortlisted Child
Law by Geoffrey Shannon for their book prize. The award is made to
a member who has published a book that is deemed to have made an
outstanding contribution to the understanding of law.
claim is a manuscript letter he
has found, signed on headed
notepaper by Whiteside on
2 April 1868, in which he
expresses interest in a House of
Commons’ winding-up speech
by Prime Minister Benjamin
Disraeli on the disestablishment
of the Church of Ireland. The
final comment in Whiteside’s
letter reads: “I return to my
wife and my duties in dear dirty
Dublin.”
Fitzpatrick says: “I am not
saying that Whiteside created
the phrase, but he may well have
done. What I am claiming is that
Whiteside’s written record of
the phrase is the earliest known
permanent source.”
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www.gazette.ie
Law Society
Law Society Gazette
26/01/2011 22:25
1
Our readers can’t have failed to
notice the redesigned Gazette
this month. It’s the fruit of many
months’ labour by the Gazette
team, with the full support of
deputy director general Mary
Keane.
While the Gazette has been
independently acknowledged as
Ireland’s best business-to-business
magazine (see p12), we have no
desire to stand still. It is vital that
the Gazette now evolves in order to
maintain pole position.
The purpose of the redesign
is to make the Gazette even more
readable, relevant and attractive
to our members, our subscribers,
potential subscribers and
advertisers.
The focus of the redesign has
been to take the Gazette’s strongest
editorial and design elements – and
to introduce new ones.
The good news is that, rather
than adding to costs, this redesign
will reduce our printing and
distribution costs – making the
Gazette even better value.
In addition to everything you
already like about the Gazette,
your new-format magazine
contains a fresh, modern design;
more practitioner profiles; a new
‘Representation’ section; a new
‘In the media spotlight’ column;
more concise book reviews; a
new ‘Reading room’ section; and
a light-hearted ‘Captain’s blawg’
page.
We look forward to your
comments, which can be emailed
to gazette@lawsociety.ie. We’re
sure you’ll like the changes!
Mark McDermott
Editor
5
6
News
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Budget 2011 brings in sweeping changes to pension rules
Budget 2011 contained sweeping
changes to the rules governing
pensions, writes Tom Kennedy.
These changes have implications
for anyone contributing to either a
personal pension or an employersponsored pension arrangement. It
also affects those already receiving
pension benefits through an
approved retirement fund (ARF).
The main changes introduced
are as follows:
• Earnings cap – the earnings limit
for the purposes of tax relief
on pension contributions has
been reduced from €150,000
to €115,000 with effect from
1 January 2011. This new
reduced limit will also apply to
law society of ireland retirement trust scheme
Set up by the Law Society in
1975, this group personal pension
arrangement facilitates the full
range of tax reliefs available on
contributions, on investment and
on draw-down.
Members of the Law Society
who are self-employed, in
partnership or in non-pensionable
employment can join the scheme.
Pension savings within the scheme
currently exceed €117,000,000.
For queries or a member
booklet, contact Mercer (the
registered administrator of the
scheme) by email at justask@
mercer.com, or by telephone at
1890 275 275.
A copy of the latest updated
scheme booklet is also available
at www.lawsociety.ie (in the
members’ area).
contributions paid in 2011, but
applied against 2010 earnings.
This affects all pension
arrangements.
• Abolition of employee PRSI and
health relief – with effect from
1 January 2011, employee
contributions will no longer
qualify for any PRSI or health
levy relief, though they will
continue to benefit from
income-tax relief.
• Reduction of employer PRSI
relief – at present, employers
New body for employment lawyers created
A new legal body – the Employment
Law Association of Ireland (ELAI)
– has been set up. Over 100
employment lawyers and other
interested parties were present for
ELAI’s official launch at Newman
House, St Stephen’s Green, Dublin
on 18 November 2010. The
association is intended to be a
forum for those who practice in,
or have a professional interest in,
employment law.
Carol Fawsitt of Hayes Solicitors,
who organised the gathering
(and whose firm hosted the
evening), outlined the reasons for
establishing the new association.
She said that the demise of the
Irish Society for Labour Law, which
had been originally formed in 1982
but had become dormant in the
past decade, had been the chief
Chair of ELAI, Carol Fawsitt
inspiration. This was coupled with
the growing number of employers
and employees seeking advice on
a range of complex matters in this
field of practice. In addition, there
is an essential need for networking
supports for employment law
practitioners.
A committee of 13 was chosen,
comprising representatives from
small and large firms, senior and
junior counsel, academia, the
Department of Enterprise, Trade
and Innovation, IBEC, the trade
unions and Northern Ireland.
The first ELAI seminar will be
held on 8 February 2011 at 6pm in
the offices of A&L Goodbody, IFSC,
North Wall Quay, Dublin 1. Director
of the National Employment Rights
Authority (NERA), Ger Deering,
will speak on the topic of ‘NERA and compliance with employment
regulation orders and registered
employment agreements’. Alan
Hough will give a presentation on
practice in this area.
Enquiries regarding ELAI can
be made to Carol Fawsitt at Hayes
Solicitors, tel: 01 662 4747.
Those interested in joining ELAI
should email Rachel McCrossan at
rpmccrossan@gmail.com.
can normally claim 10.75%
PRSI relief on any employee
contributions to either a
company pension scheme, a
trust-RAC or an employersponsored PRSA. With effect
from 1 January, this relief is
reduced by 50%.
• Standard fund threshold – the
standard fund threshold (SFT),
which is effectively the lifetime
limit on the accumulated
value of all of an individual’s
pension arrangements, is being
reduced from €5.4 million to
€2.3 million, with immediate
effect. An individual can,
however, benefit from a higher
personal fund threshold if
the total value of any pension
entitlements in place now, or
claimed after 7 December 2005,
is already in excess of the new
limit. Such individuals have six
months from 7 December 2010
to apply for a higher personal
fund threshold, which will be
based on their total pension
entitlements at current values
to a maximum of €5.4 million
– including the value of any
benefits taken from a pension
since 7 December 2005.
This application must be
made within six months of
7 December 2010.
• Retirement lump sum – the taxfree lump sum available from
pension arrangements is to be
capped at €200,000, with any
balance up to €575,000 in total,
subject to tax at the standard rate
(currently 20%). Any amount
paid out in excess of this figure
will be taxed at the individual’s
marginal tax rate. Any tax-free
retirement lump sums taken on
or after 7 December 2005 will
count towards this €200,000 cap.
• ARFs – the minimum withdrawals of 3% of value, which
must, in effect, be taken from
ARFs held by those over 60, has
been increased to 5% with effect
from 31 December 2010.
If you believe you may need to take
steps regarding your pension on
foot of the budget changes, you
may wish to contact Tom Kennedy
at Mercer on 01 411 8480.
Law Society Gazette
www.gazette.ie
CIC Tribunal
appointments
Financial elder
abuse seminar
‘The legal and policy
challenges of financial elder
abuse’ is the title of a seminar
that will be held on Tuesday,
22 February, at 5.30pm. Room
B109/10, UCD School of
Nursing, Midwifery and Health
Systems, Health Sciences
Centre, University College
Dublin, Belfield, Dublin 4. To
book, email ncpop@ucd.ie or
phone: 01 716 6467.
In the media spotlight
Lorna Groarke
Partner, Groarke and Partners, Main Street, Longford
Case summary
At a sitting of Longford
Circuit Court on 7 December
2010, 24-year-old Mr Martin
McDonagh of Mostrim Oaks,
Edgeworthstown, Co Longford,
was given a five-year jail
sentence for assault causing
harm to Noel Keegan in Longford
on New Year’s Eve 2009. Mr
Keegan died as a result of a heart
attack following the assault. Mr
McDonagh was also sentenced to
three years for assaulting Marie
Keegan.
At the time, Mr McDonagh
should have been serving a
jail term. While serving a twoyear prison term, he had been
sentenced to a further fouryear jail term for assaulting
and stabbing a man in the
leg with a pitchfork in 2007.
The prison authorities had not
been informed, however, of the
second four-year sentence and
had allowed him temporary
release for one week – from
27 November to 4 December
2009. Mr McDonagh did not
return to prison at the end of the
temporary release, leaving him
free to assault Mr Keegan, which
led to his death.
The family said that it had
been inexcusable to allow a man
who should have been in prison
to be at large, and therefore free
to attack Mr Keegan. The former
Minister for Justice Dermot
Ahern and the CEO of the Courts
Service subsequently apologised
to the Keegan family for the
failures in procedures.
How you got involved
“Marie Keegan’s brother and his
family have been good clients of
mine for years.”
Your background
“I have been practising in
Longford since 1980. I am also
an accredited civil, commercial
and family mediator.”
Significance of the case
“In my 30 years of practising
as a solicitor, I have never
before come across such a
catastrophic accumulation of
errors.”
Unusual elements that
emerged
“Mr McDonagh’s two- and fouryear sentences resulted from
prosecutions brought against
him by Longford gardaí. The
four-year prison sentence imposed
on Mr McDonagh on 28 April
2009 was entirely ignored by
the various organs of the state
whose job it was to ensure that
the sentence was served and that
society was protected.
“Judge Michael Reilly was
appointed to carry out an
independent investigation into
this specific matter. His report is
comprehensive and is relied upon
by me. It found, among other
things that, between 28 April
2009 and 5 January 2010:
• The warrant relating to that
four-year sentence was not
issued by the Circuit Court
office as it ought to have been
on 1 May 2009 – a fact so
found by Judge Michael Reilly.
• As a result, the prison
(Castlerea) where Mr McDonagh
was serving the earlier two-year
sentence was not officially
informed of the four-year
sentence.
• The gardaí did not update Mr
McDonagh’s record by entering
the four-year sentence on the
Garda Pulse system (court
outcome).
• Castlerea prison granted Mr
McDonagh temporary release
for one week ending on 4
December 2009 on very
specific conditions, including
that he was to sign on every
day at his local garda station
– found by Judge Reilly to be
Longford Garda Station. Mr
McDonagh failed to sign on,
farrell
Compensation may be awarded
on the basis of any vouched outof-pocket expenses, including
loss of earnings experienced by
the victim or, if the victim has
died as a result of the incident,
by the dependents of the victim.
The incident in which the injury
was caused must have been
reported to the gardaí without
delay.
Application must be made
to the tribunal no later than
three months after the incident.
There is no time limit for fatal
applications.
For more information,
contact: The Secretary, Criminal
Injuries Compensation Tribunal,
13 Lower Hatch Street, Dublin
2; tel: 01 661 0604, fax: 01 661
0598, or email: criminalinjuries@
justice.ie.
Media
Pic: william
The Minister for Justice and Law
Reform has appointed members
to the Criminal Injuries
Compensation Tribunal (up to
30 April 2013). The tribunal
considers applications for
compensation from those who
have suffered personal injury as a
result of criminal violence.
The tribunal administers the
following schemes:
• The scheme of compensation
for personal injuries criminally
inflicted,
• The scheme of compensation
for personal injuries criminally
inflicted on prison officers.
News
Jan/Feb 2011
on any day. In addition,
Castlerea prison failed to notify
the gardaí of:
a)The fact they were releasing
Mr McDonagh.
b)The fact that Mr McDonagh
was required to sign on every
day.
• Mr McDonagh did not return to
prison on 4 December 2009.
• In the early hours of 27
December 2009, Mr McDonagh
was arrested. He was brought
to Longford Garda Station,
processed, charged with
criminal damage and was
released on station bail.
• On 31 December 2009,
Noel and Marie Keegan were
assaulted by Mr McDonagh.
Noel died within minutes.
• On 5 January 2010, the Circuit
Court office issued the warrant
– noting it as a duplicate.”
Ramifications
“Checks and balances and
accountability are needed.
Proper procedures need to be
implemented willingly and with
diligence.”
Lessons learned
“Judge Michael Reilly has made
a number of recommendations.
I hope they are strictly and
rigorously implemented. Can we
have faith that the incompetences
and indifferences outlined
above will never happen again?
I sincerely hope so, but, being a
pragmatist, I say – let’s wait and
see.”
7
Date for your diary
L aw S ociety
A nnual C onference
6 th/7 th May 2011
Friday 6 May
The Smart Economy in Action:
Strategies for Growth in the Legal Profession
saturday 7 May
Speaker:
Peter Sutherland
Including:
• Develop a Global Shop Front for your Practice – On a Budget
- How to Create a Professional Website – Need to know Facts and Jargon
- Email Newsletters – Growing Clients, Revenue and Brand Awareness
- How to Use LinkedIn and Face Book to Promote your Practice for Free!
• Growing Your Practice through Business Networking
• Smart Practice Management – Reduce Time, Costs and Risk for your
Practice
• Smart Client Relations – Emphasis on Elderly and Vulnerable Clients
Ritz-Carlton Hotel, Powerscourt
Co Wicklow
registration form with this MONTH’s issue of the gazette
or register online at www.lawsociety.ie
Law Society Gazette
www.gazette.ie
News
Jan/Feb 2011
Lawyers
Conference on emerging human rights issues
They glaze over when we try
The Law Society and the Irish
love their
to explain why human-rightsHuman Rights Commission
impact indicators have
(IHRC)
held
their
8th
Annual
smartphones! Human Rights Conference
so often to be somewhat
Two-thirds of British lawyers
now use a BlackBerry device for
work, and three-quarters check
their messages either constantly,
or at least every hour, research
has suggested.
The survey of 100 solicitors
from firms of all sizes was
carried out for legal publisher
LexisNexis by research
company Jures. It also found
that 11% of respondents already
have an Apple iPad, despite the
devices having been launched
only last May.
A further 10% said they
had an e-book reader such as
Kindle, which they used for
legal work. More than 75% said
that they preferred online or
digital resources to ‘traditional,
paper-based libraries’.
Aussie
doctors get
legal jitters
One-third of Australian
doctors have considered giving
up medicine due to medicolegal concerns.
According to a study
mentioned in the Medical
Journal of Australia, a clear link
was identified between medicolegal concerns and changes in
doctors’ practice of medicine.
The study found that:
• 43% of doctors referred
patients to specialists more
than normal,
• 55% ordered more tests than
usual, and
• 11% prescribed more
medications.
A total of 33% of doctors said
that they had considered giving
up medicine due to heightened
fears over medico-legal
matters, 32% had considered
reducing their working hours,
while 40% had considered
early retirement.
on 20 November at Blackhall
Place, writes Joyce Mortimer.
The conference attracted over
200 people and addressed
the broad topic of economic,
social and cultural rights.
Law Society President
John Costello and IHRC
president Dr Maurice
Manning opened the
conference and introduced
the keynote speakers: UN
Human Rights Committee
member Professor
Michael O’Flaherty and
Minister for Equality,
Integration and Human
Rights Mary White.
Professor O’Flaherty
gave an insightful address that
highlighted the effects of the
economic crisis on human
wellbeing.
“It has been very difficult
historically to get the economic
and human rights sectors to
EMERGIN
G
HUMAN R
IGHTS
ISSUES
Saturday
Presidents’
, 20 Nove
mbe
Hall, Law Soc
iety of Irela
nd, Blackha
r 2010
ll Place, Dub
lin 7
engage with each other,” he said.
“They have existed often in a state
of mutual incomprehension. Just
to take the economists, they are
often bemused by human rights
talk of very specific social goods.
‘impressionistic’ in nature.”
Notwithstanding this
dichotomy, Mr O’Flaherty
pointed out that there has
been some engagement
and dialogue. For example,
there had been high-level
discussions between global
human rights leaders and
institutions, such as the World
Bank and the IMF. He said that
these discussions had helped to
carve out a vision for economic
leadership that had human
rights’ protection at its core.
He added: “A human rights
approach points to the need
for decision making to be in
pursuit of a society built on the
principle of equality and nondiscrimination, that insists on the
consistent application of the rule
of law and, most importantly,
sees the most vulnerable in
society as those most in need of
protection.”
Set your satnav for job-seeking workshops
A new schedule of workshops has
been organised by the Society’s
Career Support Service to take
place during February and March
2011. These will take place in
the evening to facilitate those
who are working. All solicitors are
welcome to attend – free of charge
– provided places are available.
The workshops will start at
6pm and will end at 8.30pm.
Matters covered are relevant
to all solicitors – regardless of
career stage and whether you are
employed, in practice or currently
not working.
Workshop 1 – Career management that works Best practices in career
management will be reviewed.
Participants will be introduced to
techniques and insights that can
dramatically improve how they
perform at job seeking. Long-term
• Cork: Wednesday 2 March
• Galway: Wednesday 16 March
• Dublin: Wednesday 30 March
career management will also be
covered.
• Dublin: Thursday 10 February
• Cork: Tuesday 22 February
• Galway: Tuesday 8 March
• Dublin: Tuesday 22 March
Workshop 2 – Access more
job opportunities Smart ways to interface with the
hidden market of unadvertised
jobs will be explored. Participants
will be guided through strategies
that can help them improve their
networking skills – including those
who find networking daunting.
• Dublin: Wednesday 16 February
Workshop 3 – Successful
interviewing
Building on our previous
interviewing training, participants
will learn how to significantly
improve preparing for and
performing at interviews, and
how to negotiate salary and other
benefits.
• Dublin: Thursday 24 February
• Cork: Thursday 10 March
• Galway: Thursday 24 March
• Dublin: Thursday 7 April
People attending workshops
can qualify for CPD group-study
credits. Capacity is limited at
most venues. Solicitors who wish
to attend any event should book
their place by emailing careers@
lawsociety.ie.
9
10
News
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Government’s goal is to reduce legal costs, says Ahern
“Those who need legal services
must be able to access them
at the best possible price for a
quality service,” said the then
Minister for Justice Dermot
Ahern at the Law Society’s
parchment ceremony for newly
qualified solicitors on
9 December 2010. “It is
necessary that legal services be
available to the public and to
business at a cost that is fair and
competitive,” he added.
In a wide-ranging speech, the
justice minister said that, in these
challenging economic times,
there was a particular demand
for new cost efficiencies to be
identified. This applied as much
in the legal sphere as it did in
other sectors of the economy.
“In this regard, the
government’s National Recovery
Plan 2011-2014 includes a
package of measures directed
at professional services.” These
measures to reduce legal costs
would be implemented, he said,
and would include:
• Increased use of tendering by
the state,
• Prioritising publication and
enactment of the Legal Costs
Bill,
• Additional proposals for
legislation to reduce legal
costs, drawing on the
recommendations of the Legal
Costs Working Group and the
Competition Authority, and
• Increased use of arbitration
and mediation.
is to oversee the handling by the
Law Society and Bar Council of
complaints by clients of solicitors
and barristers. The ombudsman
will be independent in the
performance of the functions
of the office and will serve to
increase public confidence in the
complaints systems of the legal
professions.”
Minister Ahern said that
the ombudsman post had been
recently advertised and that the
appointment would be made “in
the near future”.
Then Justice Minister Dermot Ahern addresses the parchment ceremony:
“Government now committed to ‘a better regime’ in relation to legal costs”
Minister Ahern said that, under
the Programme of Financial
Support for the State from the
EU and the IMF, the government
was now committed to “a better
regime in relation to legal costs
and better regulation of the legal
professions”.
Greater transparency
“The Legal Costs Bill will replace
the Office of Taxing Master and
establish new principles for the
assessment of all costs. It will
modernise the various statutes,
some of them of very old vintage,
relating to legal costs, while also
ensuring greater transparency
in relation to how legal costs are
agreed with clients and invoiced.
The scope of the bill will extend
to both solicitors and barristers.
The proposals for the Legal Costs
Bill are being developed with a
view to publication as soon as
possible in 2011,” he said.
Legal ombudsman
He told the newly qualified
solicitors that they would
have been made aware during
their professional training that
adherence to a code of conduct
in their work was “absolutely
essential”.
“It is only right, in the public
interest, that breaches of the
code are serious matters. To
strengthen the systems that
are in place, the government
has provided in legislation for
establishment of the Office of the
Legal Services Ombudsman.
“The role of the ombudsman
Difficult time
Minister Ahern encouraged
the new solicitors to remain
optimistic in what was
undoubtedly a difficult economic
climate. “Those of you receiving
your parchments today are well
qualified to meet the challenges
of a career in law. Having regard
to your training and the legal
and business environment that
you face, I believe that you can
look forward with confidence
to a demanding and, in time, a
rewarding future – whether that
be in practice as a solicitor, or in
some other position for which
training as a solicitor makes you
eminently suited.
“While the economic situation
has impacted particularly on the
solicitors’ profession, I am sure
that, in time, the recovery we
are working towards will open
full and rewarding careers for
you all.”
mission
an Rights Com
Irish Hum
Seamus Heaney lecture with this Gazette
One of Ireland’s most distinguished
poets and prominent advocates for
human rights, Seamus Heaney, has
kindly agreed to the circulation to
all solicitors, with this copy of the
redesigned Law Society Gazette,
of his lecture to the Irish Human
Rights Commission entitled Writer
& Righter.
The lecture commemorates the
anniversary of the UN Universal
Declaration of Human Rights. The
theme that the Nobel laureate
chose was the relevance of poetry
in times of societal upheaval and
unrest. He particularly highlighted
the differences between the
sedentary w-r-i-t-e-r-s and the proactive r-i-g-h-t-e-r-s, the former
whose job is to reflect, and the
latter whose role is to take action.
As the president of the Human
Rights Commission, Maurice
Manning, remarked in his preface
to Writer & Righter, one of the
most inspirational poems in
support of human rights ever
written was From the Republic of
Conscience. Heaney wrote this to
commemorate the 25th anniversary
of Amnesty International in 1985.
Law Society director general
Ken Murphy has thanked both
the poet and the IHRC for their
permission to distribute Writer
& Righter free of charge to all
solicitors. Murphy remarked on
the great value for us all to be
reminded, in the most inspirational
of language, of the obligation that
we share as lawyers to uphold
the fundamental principle of the
Writer &
Righter
Heaney
By Seamus
an Rights Lect
C Annual Hum
Fourth IHR
ure, 9 December
2009
UN declaration that “all human
beings are born free and equal in
dignity and rights”. Law Society Gazette
www.gazette.ie
Representation
Jan/Feb 2011
news from the law society’s committees and task forces
Whistle-blower protections fall short
employment and equality law committee
There have been a number
of significant employment
and equality law legislative
developments and procedural
reviews over the last few
months and, as such, committee
members have been busy making
representations on behalf of
practitioners.
In November, committee
members made a detailed
submission to the Minister
for Justice and Law Reform
regarding proposed whistleblower protection legislation. The
committee submission extensively
reviewed relevant existing whistleblower protection legislation,
highlighting that, where
legislation has been enacted, the
protections are not consistent for
the person making the protected
disclosure. Members urged the
implementation of legislation
to bring consistency to the
protections available, regardless of
the sector involved.
The committee also made
a detailed submission to the
Department of Community,
Equality and Gaeltacht Affairs
on the content of the Civil Law
(Miscellaneous Provisions) Bill
2010. In particular, members
highlighted that some of the
amendments contained in part
6 of the 2010 bill propose very
far-reaching changes to the
quasi-judicial procedures of
the Equality Tribunal, which
would fundamentally affect the
rights of both complainants and
respondents in their interaction
with the tribunal.
The committee has been
in correspondence with the
Department of Enterprise, Trade
and Innovation regarding an
ongoing departmental review of
the various employment rights
bodies. To that end, a meeting
has been arranged between
committee members and officials
from the department, to discuss
how the experience of solicitors
might contribute to the review
process.
Clarification for solicitors who witness a will
probate, administration and trusts committee
in case law since In Re Pooley (CA
The Probate, Administration
1888) that a witness who witnesses
and Trusts Committee has issued
a will cannot
a practice note
thereafter take
on the issue of a
“An executor may
any benefit
solicitor witnessing
under the will.
a will for a testator
be a witness to a
The provision
in circumstances
will but he loses any
underpinning
where the solicitor
the decision is
is the executor
legacy given to him”
repeated almost
appointed under
exactly in section
the will. A member
82 of the Succession Act 1965. It
of the committee has reviewed
was followed in the case of In the
the law in the matter and it is set
Matter of Daniel McLaughlin (1909
out below. It appears to be settled
43 ILTR 240), which dealt with
the same issue.
As far back as Miller’s Probate
Practice in 1900, it was stated: “An
executor may be a witness to a
will, but he loses any legacy given
to him” (see p101). The modern
textbooks have consistently
followed this approach.
Given the clear statement of
law, the committee has issued a
practice note to clarify matters for
the benefit of members (see page
48 of this Gazette).
The CCBE – what it is and what it does
EU and international affairs committee
The Council of Bars and Law
Societies of Europe (CCBE) is
the representative organisation
of around one million European
lawyers through its member bars
and law societies.
It acts as the liaison between
the EU and Europe’s national
bars and law societies. The CCBE
has regular institutional contacts
with those European Commission
officials, and members and staff
of the European Parliament, who
deal with issues affecting the legal
profession. In addition, it works
closely with legal organisations
outside Europe.
Ireland has had a long and
active participation in the
organisation. The Irish delegation
to the CCBE is composed of the
Law Society and the Bar Council.
The delegation includes solicitors
and barristers at the various
CCBE committees and working
groups. Through regular reports,
these representatives keep the
delegation informed of recent
developments and relevant issues
arising in their area of expertise.
The delegation meets before
the Society’s standing committees
(five times a year) and in plenary
sessions (twice a year) to discuss
the agenda and reach a common
position for voting.
For further details on the
CCBE and on the Irish delegation,
visit www.ccbe.eu and www.
lawsociety.ie/Pages/Committees/
EU-and-International-Affairs/
current-issues.
EU VAT refund
directive
taxation committee
The Taxation Committee
reports that the Council of
the European Union recently
adopted a directive concerning
the refund to taxable persons of
VAT incurred in another EU
member state, where the taxable
person is not established. The
new directive provides for the
extension of the deadline for the
submission of refund applications
for expenses incurred in 2009
from 30 September 2010 to 31
March 2011. Accordingly, refund
claims for 2009 can be processed
electronically via the Revenue online system until 31 March 2011.
Next phase of
e-registration
econveyancing task force
The eConveyancing Task Force
welcomes this new forum for
communicating with solicitors
and looks forward to publishing
regular updates on its work and
engagement with stakeholders
in the development of a
modern, electronic, streamlined
conveyancing process for Ireland.
The task force has recently
met the Property Registration
Authority (PRA) to discuss
the remit of the next phase of
e-registration, and it is proposed
to publish a comprehensive joint
article on these proposals later in
the year. A total of 99 solicitors
took part in a survey about
boundary mapping late in 2010.
The results from that survey are
now being analysed and will be
published shortly.
The task force can be contacted
by emailing the e-conveyancing
project manager, Gabriel Brennan,
at g.brennan@lawsociety.ie.
11
12
Analysis
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
GAZETTE scoops top gong
The Gazette won a major national magazine award last December, beating off other leading Irish magazines.
But – as our brand-new look shows – we are refusing to rest on our laurels
pic: lensmen
T
he Law Society Gazette
received national
recognition on
2 December when it was named
best ‘Business to Business
Magazine of the Year’ at the
Magazines Ireland Awards. The
award was presented by RTÉ
news anchor Bryan Dobson
at a black-tie ceremony at the
Four Seasons hotel in Dublin.
The ceremony was attended by
Ireland’s top publishing houses
and magazine publishing teams.
The Gazette had previously
been shortlisted in the ‘Business
to Business Magazine of the Year’
category (for magazines with a
circulation of more than 5,000).
Among the publications vying for
top prize in this category were
Accountancy Ireland, Accounting
and Business Ireland, agendaNI, the
Engineers Journal and EuroTimes.
The Gazette’s citation reads:
“[It] made a strong submission
and showed enterprise and
imagination in dealing with the
commercial realities that hit
the magazine in the last two
years. This strong commercial
awareness has started to reap
benefits in 2010. The title shows
a commitment to excellence and
is a ‘must-read’ for those in the
profession’, [and shows] a clear
understanding of the audience’s
needs and meeting the needs of
the people it serves.”
The judges for the Magazines
Ireland Awards included Ian
Locks (former CEO, Periodical
Publishers’ Association), Chris
Redman (former managing
editor, Time magazine), Fiona
Curtin (president, Advertisers’
Association of Ireland), Orlaith
Blaney (board member, Institute
of Advertising Practitioners in
Ireland), and Kathleen Ryan
(magazine consultant).
The Magazines Ireland Awards
Simply the best!
The Gazette team
celebrates its
national award
are open to all members of the
win, Law Society director general
association and “are aimed at
Ken Murphy said: “I congratulate
rewarding the best Irish magazines
the Gazette team, led by editor
and the people behind them”.
Mark McDermott, as well as the
The body represents over 200
Gazette Editorial Board chaired
Irish magazines – both consumer
by Michael Kealey, on this
and businessoutstanding
to-business
success. The
titles – and a
Gazette team is
“This award is
total of 42 Irish
well deserving
exactly the impetus
publishers. Every
of this national
year, 125 million
recognition for
we need to continue
magazines are
their superb
setting the highest
bought in Ireland,
work on the
25 million of
publishing standards” Society’s
which are Irish
magazine.”
produced. The
Gazette
sector contributes over
editor Mark McDermott praised
€400 million to the Irish economy
his colleagues for delivering
annually. Chief executive of
the “best possible Christmas
Magazines Ireland, Grace Aungier, present”. “This is excellent news
says: “The awards are an important and gives us all a well-deserved
step in showcasing the best Irish
boost at the end of two difficult
talent in magazine publishing and
years. With the backing of
in raising the profile of this key
deputy director general Mary
sector in Ireland.”
Keane, the Gazette has been
Commenting on the Gazette’s
constantly evolving to cope with
the loss of advertising revenue
due to the economic downturn.
This has been achieved with no
loss of quality or diminution in
the information provided to our
members.”
“This award is exactly the
impetus we need to continue
setting the highest publishing
standards,” he added, “and to
press on with our plans for the
redesign of the magazine early in
the New Year. I am confident that
the new changes will nudge the
Gazette’s standards even higher –
and our costs lower – and that the
redesign will be well received by
members.”
The Gazette team reports to
deputy director general Mary
Keane and consists of Mark
McDermott (editor), Garrett
O’Boyle (deputy editor), Nuala
Redmond (designer), Seán
ó hOisín (advertising manager),
Catherine Kearney and Valerie
Farrell (Gazette admin). G
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Analysis
13
14
Analysis
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
the world’s your oyster
So you’re thinking of leaving to pursue international work opportunities abroad? The Career Support service
gives you the up-to-date intel on the most popular jurisdictions for lawyers chasing their dream (of a) job
Keith O’Malley
is the Law
Society’s career
development
advisor in the
Career Support
service
R
ecently, there has been a
big increase in enquiries
about opportunities
for Irish solicitors to work and
qualify in other jurisdictions.
Work opportunities, immigration
rules and the ability to qualify all
continually evolve and change in
individual locations. This article
seeks to outline the up-to-date
situation on locations in which
Irish solicitors are most interested.
More detailed information on
each location is available within
the Career Support section on the
Society’s website.
Australia
The only
generally
available
Australian work-permit visa is
a working holiday visa. This
has a duration of one year and
allows the holder to stay with an
employer for up to six months. It
is available on a once-off basis to
people aged between 18 and 30
years of age.
To remain on and to be allowed
work, Irish people usually rely
on a temporary business visa –
subclass 457. To do this, you need
to be sponsored by an employer.
Irish solicitors have no innate
right to qualify in Australia.
Lawyers qualified in other
jurisdictions who want to qualify
in Australia need to submit to an
assessment of their qualifications.
This assessment is done on an
individual basis and must be
paid for. Following on from the
assessment, Irish lawyers are now
usually required to sit, and pass,
about six exams.
You must have a law degree to
qualify as a lawyer in Australia.
If you do not have at least three
months’ Irish post-qualification
experience (gained while holding a
practising cert), you will probably
be required to complete the
Australian two-year graduate
programme.
It is reported that Australia’s
rural towns and regional centres
offer good work opportunities,
and also the option of building
a long-term life there – with
flexibility to balance work, leisure
and family at the relaxed pace
associated with country living.
The Trans-Tasman Mutual
Recognition Arrangement allows
Australasian-qualified lawyers to
register and practise throughout
Australasia.
Very few Irish lawyers have
gone through the New Zealand
assessment-of-qualifications
process. It is very similar to,
but more expensive than, the
Australian process. It is likely
that Irish lawyers who work in
New Zealand tend already to
be Australian qualified and can
register in New Zealand, based
on the Trans-Tasman Mutual
Recognition Arrangement.
China
Hong Kong
has 5,000
practising
lawyers and circa 1,000 are
originally Irish/British qualified.
Foreign qualified lawyers must sit
a qualified lawyers’ qualification
examination to qualify as a
Hong Kong solicitor. It has been
reported that Hong Kong lawyers
and law firms are particularly
“A good source of latest information and advice for
solicitors thinking of travelling to, and living in,
Australia is available on LinkedIn in the Law Society
of Ireland’s sub group ‘Working in Australia’”
A good source of latest
information and advice for
solicitors thinking of travelling to,
and living in, Australia is available
on LinkedIn in the Law Society of
Ireland’s sub-group ‘Working in
Australia’.
New Zealand
Visa
regulations in
New Zealand
are similar to those in place in
Australia, with sponsorship by an
employer the most common way
that people gain the freedom to
stay and work there.
well placed to exploit the rapidly
growing market for law services in
mainland China.
Canada
A significant
number of
Irish solicitors
emigrated to Canada in the last
three years. Unfortunately, many
found it more difficult than
expected to get established –
especially in relation to qualifying
and working as a lawyer there.
Many have since returned to
Ireland earlier than planned.
Getting there initially is easy
enough to organise. There is a
one-year work-permit visa that is
open to anyone under the age of
35. To stay longer, you need to get
an employer to sponsor you.
As in other jurisdictions,
foreign-qualified lawyers are
required to go through an
assessment of qualification
process. However, in Canada, the
process has proved exceptionally
stringent, and people are regularly
required to almost completely
re-qualify again.
Employers, too, have proved
to be conservative and some Irish
lawyers have found it difficult to
get employment in legal firms
or legal departments – even in a
support role.
United States
Very few Irish
lawyers have
moved to
work in the USA in the last few
years. Up to a few months ago,
there was not a facility for people
to work short term there after
qualifying. The only mainstream
way to get a work-permit visa in
the USA was to have an employer
sponsor you (as an employee who
could not be recruited).
The ability to sponsor nonnationals has all but stopped
for most US employers, given
the significant unemployment
currently being experienced there.
To qualify as a lawyer in the
USA, people are required to pass
bar exams in whatever state they
plan to practise. There are wellestablished tuition providers in
place in Ireland where people can
prepare for popular bar exams,
like New York and California.
Most US states also require a law
degree. California is the notable
exception in this regard.
A recent, welcome development
has been the introduction of the
Law Society Gazette
www.gazette.ie
Work USA Visa programme that
allows newly qualified solicitors
to live and work in the US
for a period of up to one year.
Participants need to work in a job
related to their new profession.
Caribbean
Opportunities
in locations
such as the
Cayman Islands and Bermuda
are not as prevalent as they were
in the past. The usual route is
for people to land a job offer and
then the employer undertakes
to organise a visa. Most Irish
solicitors who gain work in these
locations do so through British
recruitment firms. A British or
American legal qualification is
usually required.
United Arab
Emirates
Solicitors
are recruited
for jobs in the Gulf states and
other Middle Eastern locations
through British recruitment firms
– but also through international
law firms and commercial
companies who often advertise
internationally. Traditionally,
there has been particular demand
Analysis
Jan/Feb 2011
for lawyers with expertise in
large-scale construction projects
and international trade. Visas are
usually organised by employers.
Europe
Irish solicitors
are entitled to
live and work
in any EU country, and also to
practise as a lawyer using their
Irish qualifications. Also, after
practising as an Irish lawyer for
three years in any EU jurisdiction,
one becomes entitled to practise
under local title – provided you
have been a registered European
lawyer for the three years.
Law and commercial work is
now regularly done through the
English language throughout
Europe, but people working in
continental Europe still usually
require fluency in a second
language – typically the local
language used where they are
living and working.
EU institutions such as the
European Commission, the
European Parliament and the
European Council all operate
stage (internship) programmes and
recently qualified professionals
undertake these to gain experience
and make contacts as a foundation
“A recent, welcome
development
has been the
introduction of
the Work USA
Visa programme
that allows newly
qualified solicitors
to live and work in
the US for a period
of up to one year”
for establishing a
career in this arena.
In recent years, Irish
solicitors have had
success in joining international
law firms and consultancy firms,
in particular in Luxembourg and
Brussels. Jobs and internships
also become available in the
European offices of international
organisations, such as the UN
and associated organisations.
These jobs in international
firms and in European and
international institutions are
filled primarily after being
advertised on the internet and
can be applied for from Ireland.
Inconveniently, organisations
all tend to manage their own
recruitment and, as a result,
job seekers often have to link
up with, and monitor, severed
individual organisations that
interest them.
Britain
By far the
most popular
jurisdiction
outside of Ireland, and with good
reason, is Britain. Getting to and
from there is easy, and experience
gained working in Britain is
generally more relevant to Irish
employers
than
experience
gained
further away. Britain has, itself,
experienced a sharp downturn, but
Irish solicitors continue to access
good work opportunities there.
Currently, there are problems
related to qualifying in Britain.
The Solicitors Regulation
Authority (SRA) for England
and Wales instituted a new
procedure last September that has
experienced teething problems.
We know of no Irish solicitor who
has qualified through this new
procedure yet.
The Law Society of Ireland is
working with the SRA in England
and Wales, seeking to simplify
how members can qualify in both
jurisdictions. However, despite
the Society’s tenacity in addressing
this matter, it is likely to take some
further time to progress to finality.
In the meantime, Irish solicitors
can use the EU Establishment
Directive as an alternative. Irish
solicitors can register with the
SRA as a registered European
lawyer, and this provides automatic
eligibility to work with an English
or Welsh law firm (including
eligibility to become a partner). G
15
16
Human rights watch
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
closing the book on
traveller discrimination?
The Equality Tribunal has found that a particular school’s admissions policy indirectly discriminated
against Travellers – which may have implications for schools with a similar policy
I
Following an unsuccessful internal
‘Father as a past pupil’ criterion
appeal to the school’s board in January,
The school’s admissions policy stated
and a failed appeal from that to the
that the following criteria would be
Department of Education and Skills
taken into account: “The application is
under section 29 of the
on behalf of a boy:
Education Act 1998, heard
1)Whose parents seek
“His father was
in May, the Irish Traveller
to submit their son
Joyce Mortimer is
to a Roman Catholic
statistically much Movement Independent
the Law Society’s
Law Centre filed
education in accordance
less likely to
human rights
proceedings on behalf of
with the mission
executive
Mary and her son John in
statement and Christian
have progressed
the Equality Tribunal in
ethos of the school,
to second-level
July 2010.
2) Who already has a
Due to the urgent
brother who attended
education than
nature of the complaint
or is in attendance at
the rest of the
(the child was due to
the school, or is a child
population at
start secondary school
of a past pupil, or has
in September 2010),
close family ties with
that time”
the Equality Tribunal
the school,
expedited the proceedings,
3)Who attended for his
requesting written submissions from
primary school education at one of
both sides in September and hearing
the schools listed in schedule two,
the complaint in early November. The
being a school within the locality or
director of the Equality Tribunal, Niall
demographic area of the school.”
McCutcheon, heard the matter.
The complainant met each of the
Indirect discrimination
essential criteria, save number two,
since no one in his family of his father’s The complainant argued that the
second criterion of the school’s
generation had progressed to secondadmissions policy amounted to indirect
level education.
discrimination under the Equality
Acts 2000-2008. This is defined
under section 3(1)(c) of the acts as
What are the Equal Status Acts 2000-2008?
follows: “Where an apparently neutral
provision puts a person referred to in
• Race colour, nationality,
establishments is also
The Equal Status Acts 2000any paragraph of section 3(2) [that is,
ethnic or national origins,
prohibited, subject to some
2008 prohibit discrimination
covered by one of the discriminatory
• Membership of the Traveller
exemptions.
in the provision of goods and
grounds] at a particular disadvantage
community.
The nine grounds on which
services, the disposal of property
compared with other persons, unless
discrimination is outlawed by
and access to education, on
the provision is objectively justified
Penalising a person for making
the Equal Status Acts are as
any of the nine grounds set out
by a legitimate aim and the means of
a complaint of discrimination or
follows:
below.
achieving that aim are appropriate and
for giving evidence in someone
The acts outlaw discrimination • Gender,
necessary.”
else’s complaint or lawfully
• Marital status,
in all services that are generally
Section 3(3A) of the act provides
opposing unlawful discrimination
• Family status,
available to the public.
that statistics are admissible in order
is called victimisation, and the
• Sexual orientation,
Discrimination in the
to determine if a breach has occurred.
Equal Status Act, specifically
• Religious belief,
provision of accommodation,
According to established case law, it
protect a person against such
• Age,
admission or access to
is not necessary in this respect to find
victimisation.
• Disability,
educational courses or
that the provision in question does, in
n a decision that could have
implications for all schools with
a similar policy, the Equality
Tribunal recently found that the
admissions policy of a secondary school
that prioritised places for the children
of past pupils indirectly discriminated
against members of the Traveller
community. It should be noted that
this finding is being appealed by the
school’s board of management to the
Circuit Court.
In a complaint lodged on behalf
of Mary Stokes and her son John
(by solicitor Siobhan Cummiskey
of the Irish Traveller Movement
Independent Law Centre), the
tribunal found that the complainant, a
member of the Traveller community,
was disproportionately affected by
the ‘child of a past pupil’ criterion.
This was demonstrated by figures
showing that his father was statistically
much less likely to have progressed
to second-level education than the
rest of the population at that time.
Furthermore, the “blanket priority”
given to such school applicants was
found not to be “objectively justified by
a legitimate aim”.
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Human rights watch
the ‘blanket priority’ was not
considered proportionate or
necessary by the tribunal for the
following reasons:
“1)The priority applies to the
children of all past pupils,
irrespective of the actual level
of current engagement of the
father with the school. In many
cases, therefore, the means
would not achieve the aim.
2) There are other ways of
achieving this aim, which would
not disadvantage children
whose fathers did not attend the
school, such as organising a past
pupils’ union, by the activities
of a parents’ association, etc.
3) The impact on Travellers is
disproportionate to the benefit
of the policy (see page 16).”
practice, affect a substantially
higher proportion of Travellers
– it is sufficient that it is liable
to have such an effect (ECJ
C-237/94, O’Flynn v Adjudication
Officer [1996] ECR-I-02617,
paragraphs 20, 21).
The tribunal found that the
criterion that gave priority to
children of past pupils did both
potentially, and actually, put the
complainant at a disadvantage.
The complainant submitted
empirical evidence to depict the
historical disadvantage to which
Travellers had been subjected in
the past, focusing on when the
complainant’s father would have
received post-primary education.
The Report of the Travelling
People Review Body in 1983 stated
that just 10% of Travellers
who attended primary school
progressed to second level at that
time, compared with 66.4% of the
general population in 1982.
Competitive exam
While the school could not
produce statistics on how many
Travellers were in attendance at
the school in the 1980s, it did
indicate that entry was by way of
a competitive written exam. The
tribunal found this application
process would likely put Travellers
at that time at a disadvantage,
attended the school would have
given the poor academic standards
increased the complainant’s
among Travellers at primarychances of being awarded a place
school level in the 1980s.
in the subsequent lottery for
Figures supplied by the
places by 70%.
Department of Education
The tribunal found, on the
showed that just 100 Travellers
balance of probabilities, that
were registered in post-primary
the policy of giving priority to
schools in the entire country
children of past pupils put the
in 1988, making the chances of
complainant, as a member of
the complainant’s father having
the Traveller community, at a
attended post-primary school
particular disadvantage compared
“extremely remote”. The tribunal
with non-Travellers.
found that this proved that the
complainant, as
a Traveller today,
“This application ‘Blanket priority’
According to
was statistically
process would
established case law,
much less likely to
when determining
have a father who
likely put
the scope of any
attended secondTravellers at
derogation from
level education, and
an individual right,
he was, therefore,
that time at a
due regard must be
potentially affected
disadvantage”
had to the principle
much more by
of proportionality.
this criterion
In other words, the derogation
for admission than his settled
must be appropriate and
counterparts.
necessary to achieve its aim (ECJ
As well as potentially affecting
C-476/99, Lommers [2002] ECR
the complainant as a member
I-2891, paragraph 39).
of the Traveller community, the
The aim of giving priority
complainant proved that he was
to children of past pupils,
put at a particular disadvantage
according to oral evidence
compared with his settled
presented by the school, was
counterparts by this criterion, in
to foster family loyalty to the
that all 36 applicants who met the
school and to promote a family
‘father-as-a-past-pupil’ criterion
ethos within education. While
were awarded places. The tribunal
this was considered legitimate,
found that having a father who
Potential consequences
The tribunal upheld the complaint
against the school and ordered that
the complainant be offered a place
immediately, and that the school
review its policy to ensure that it
does not indirectly discriminate
against pupils on any of the
grounds covered by section 3(2) of
the Equal Status Act.
This decision – should it
stand – could have far-reaching
consequences for all schools that
have a similar policy. The board of
management of the school at the
centre of this case has decided to
appeal the Equality Tribunal’s
determination in the Circuit
Court. The school’s legal advisers,
Mason, Hayes & Curran,
confirmed to the Irish Examiner
on 18 January 2011 that an appeal
against the tribunal findings had
been lodged at the Circuit Court
on 13 January 2011. The
newspaper added that it had been
confirmed by one of the law firm’s
partners, Ian O’Herlihy, that John
Stokes has not been offered a place
at the school.
Subject to the findings of the
appeal, it will be interesting to see
whether this case will have wider
implications for equality law, in
general, for schools that accept
pupils who fall within any of the
nine grounds covered by section
3(2) of the act. G
17
18
Viewpoint
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
the criminalisation of
forced labour in ireland
Despite the Criminal Law (Human Trafficking) Act 2008, Nick Henderson argues that no forced labour case has
yet been prosecuted in Ireland – and so, forced labour is not considered a crime here
Nick
Henderson is
legal advocacy
worker on
trafficking and
forced labour at
MRCI
I
n November 2010, the
Human Rights Commission
stated that the Irish state may
have breached international law
by not outlawing the Magdalene
laundries. Unfortunately, forced
labour is neither a historical
nor foreign problem. Migrant
Rights Centre Ireland (MRCI),
an NGO that campaigns for
vulnerable migrant workers,
assists workers in the domestic,
agricultural, restaurant, seafaring
and construction sectors who
have experienced forced labour.
In MRCI’s experience, forced
labour begins with deception
about working and living
conditions, followed by low or
no pay. Deception, coercion and
abuse are also used to control
workers. The process can also be
gradual: working conditions may
be initially decent but deteriorate
over time.
Forced labour – a crime or not?
The Criminal Law (Human
Trafficking) Act 2008 states
that trafficking for labour or
sexual exploitation is a crime
with a maximum sentence of
life imprisonment. In MRCI’s
experience, the current
interpretation of this act by the
authorities is that trafficking into
or within Ireland is a required
ingredient for there to be an
employs or accommodates a
offence. The Irish government is
victim for the purpose of labour
not alone in drafting legislation
or sexual exploitation, and if
that criminalises labour or
coercion, deception or abuse of
sexual exploitation with the
vulnerability is used against the
requirement that the person has
victim. This interpretation does
been trafficked for that purpose.
not link the offence of forced
Some observers have criticised
labour to cross-border or internal
the focus on trafficking, as it
trafficking, and the victim can be
allows governments to appear
a foreigner or Irish.
active on forced
MRCI submitted
labour without
“An offence of
this interpretation
addressing its
to the authorities in
most prominent
forced labour
June 2010.
manifestations,
is therefore
which are not
International law
always as a
committed if a
The International
consequence of
person employs
Labour Office’s
trafficking.
Forced Labour
The Criminal
or accommodates
Convention 1930
Law (Human
a victim for
and the UN’s
Trafficking)
Supplementary
Act 2008 can,
the purpose of
Convention on the
however,
labour or sexual
Abolition of Slavery,
be read as
exploitation,
both ratified by
criminalising
Ireland, require
forced labour
and if coercion,
the criminalisation
without the
deception
of forced labour.
ingredient of
Unfortunately,
cross-border
or abuse of
monitoring and
or internal
vulnerability is
redress procedures
trafficking.
for both conventions
(This interused against the
are limited. Article
pretation was
victim”
4 of the European
argued by Eilis
Convention on
Barry BL at
Human Rights
a conference
(ECHR) states that no one shall
organised by MRCI in June
be held in slavery or required
2010.) The act contains the
to perform forced labour. In
standard definitions of trafficking
Siliadin v France (26 July 2005),
(recruiting, transporting or
the European Court of Human
harbouring a person), but its
Rights concluded that member
scope is expanded by including
states’ positive obligations under
trafficking as “providing the
article 4 require the penalisation
person with accommodation or
and effective prosecution of
employment”.
forced labour and that France’s
An offence of forced labour is
failure to do so was a violation of
therefore committed if a person
article 4. The Siliadin decision
has urgent implications for
Ireland: it must have legislation
that penalises and effectively
prosecutes any act aimed at
maintaining a person in a
situation of forced labour.
Options for victims
To MRCI’s knowledge, the
gardaí have not prosecuted
a case of forced labour using
this interpretation of the 2008
act – and no other law explicitly
criminalises forced labour. Until
this interpretation is accepted
or a new law is drafted, forced
labour is not considered a crime
and a victim has no redress.
Victims could be advised to
present themselves to the gardaí.
If the case were not investigated,
there would be no prosecution,
on the grounds that there is
no law to prosecute the crime
or that the gardaí are awaiting
the authorities’ opinion on the
interpretation. A statement
confirming this could be sought
from An Garda Síochána or the
Director of Public Prosecutions.
A possible remedy would then be
judicial review, on the grounds
that the authorities had failed
to investigate and prosecute a
case of forced labour, thereby
breaching article 4 of the ECHR.
If the authorities do not agree
that the 2008 act can be interpreted as criminalising forced labour,
and unless another law that does
so can be identified, Ireland
may be violating its positive
obligations to penalise the crime.
A victim could make reference
to section 3 of the ECHR Act
2003 and state that failure
Law Society Gazette
www.gazette.ie
to penalise forced labour is
incompatible with the ECHR.
Mr Justice McKechnie, in his
2007 High Court decision in
the Lydia Foy case, said that the
state was in breach of the ECHR
by not having law that met its
ECHR obligations – as it would
be if it had law that violated
its obligations – and made a
declaration of incompatibility.
A declaration of incompatibility
does not necessarily result in a
change of law. The European
court has stated that a declaration
under Britain’s Human Rights
Act is not an effective remedy
as protected by article 13 of
the ECHR. Considering the
similarity of wording between
Ireland’s ECHR Act and Britain’s
Human Rights Act, this finding
may apply to Ireland. In these
circumstances, the victim could
approach the European court
directly and state that Ireland’s
failure to criminalise forced
labour violates its obligations
under article 4.
In October 2009, as a result of
advocacy by NGOs, politicians
and trade unions, the British
government accepted that
existing legislation failed to
Viewpoint
Jan/Feb 2011
“To our knowledge, the gardaí have not
prosecuted a case of forced labour using this
interpretation of the 2008 act – and no other
law explicitly criminalises forced labour. Until
this interpretation is accepted or a new law
is drafted, forced labour is not considered a
crime and a victim has no redress”
criminalise
forced labour
and amended
the Coroners
and Justice Act 2009 to include a
definition of the crime.
Britain’s Ministry of Justice
and the Crown Prosecution
Service have issued guidance
for the courts and police as
to how the offence should be
interpreted. The 2008 act is
sufficient to criminalise forced
labour and a new law is not
required, but guidance similar
to that of the British authorities
may be required from the
Department of Justice and the
DPP, setting out the elements
of the offence and evidential
considerations.
The future
The European Court of Human
Rights will hear a case in due
course in which it will be
argued that the state has greater
obligations to protect migrant
domestic workers from forced
labour due to their vulnerability.
The argument will be that
the state must protect them,
through workplace inspections,
for example – and not simply
to penalise the crime of forced
labour.
If forced labour is criminalised,
protection for foreign victims who
have lost their status to remain in
the country will also be required,
so that the person is secure in the
country while they act as a witness
and recover from
their experiences.
Irrespective of
the existence of
the offence of forced labour,
practitioners will continue to
advocate for victims of forced
labour using civil employment
courts. While not equivalent to a
criminal prosecution, the victim
may at least receive justice for
breaches of employment law. G
Look it up
Cases:
• Foy v An t-Ard Chlaraitheoir &
Ors [2002] IEHC 116
• Siliadin v France, ECtHR (26
July 2005)
Legislation:
• Coroners and Justice Act 2009
(Britain)
• Criminal Law (Human
Trafficking) Act 2008
• European Convention on Human
Rights
• European Convention on Human
Rights Act 2003
• Forced Labour Convention 1930
(International Labour Office)
• Human Rights Act 1998
(Britain)
• Supplementary Convention on
the Abolition of Slavery, the
Slave Trade, and Institutions
and Practices Similar to
Slavery (1957)
Literature:
• The Crown Prosecution
Service’s Guidance on Slavery
and Forced or Compulsory
Labour, published 19 March
2010 (see: www.cps.gov.uk/
legal/s_to_u/slavery_servitude_
and_forced_or_compulsory_
labour/)
19
20
Law Society Gazette
Cover story
the
big
chill
Protective costs orders may provide the means of
overcoming the so-called ‘chilling effect’ of costs for public
interest litigation. Jo Kenny turns up the heat
Jo Kenny is legal officer at the Public Interest Law Alliance,
a project of the Free Legal Advice Centres. She qualified as
a barrister in England and worked as a legal advisor to the
Department for Work and Pensions for three years, where she
advised on domestic and international litigation. She co-authored
the pensions chapter in Employment Law edited by Maeve
Regan (Tottel)
E
arlier this year, Britain introduced a policy
by which unsuccessful asylum-seekers could
be deported with little or no notice. Medical
Justice is a non-governmental organisation
that helps asylum-seekers in immigration
centres. They decided to legally challenge this
policy. The English High Court found part of the scheme
unlawful on the ground that it infringed access to justice.
One feature of the case that may have gone unnoticed
is that, at the early stages of litigation, Medical Justice was
granted what is known as a ‘protective costs order’, which
capped its liability for costs at Stg£5,000, whatever the
substantive outcome. This meant they could proceed with
litigation without fear of an adverse costs order that they
could not afford to pay.
A ‘protective costs order’ is a costs order made at the
outset of litigation, providing a plaintiff with certainty on
the costs outcome. The order might provide any of the
following:
www.gazette.ie
Jan/Feb 2011
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Cover story
>>
Fast facts
> ‘Protective costs order’ – a costs order
made at the outset of litigation, providing a
plaintiff with certainty on the costs outcome
> The courts may find merit in relaxing the
usual costs rules to enable a public-interest
matter to be heard
> In other jurisdictions, what are the relevant
criteria to be satisfied for a protective costs
order to be granted?
> Where Ireland stands on the matter – cases
must raise a unique and exceptional issue
of public importance
21
22
Cover story
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
• That there will be no order as to costs,
• That the plaintiff’s liability for costs are
capped, or
• That the defendant will pay costs, even if
the plaintiff is unsuccessful.
This may all sound a little radical! So it is
necessary to take a step back to understand why
the courts would develop such a jurisdiction.
Leading English authority
It is a fact that not everyone can afford the
high-risk game of litigation. But where a case
provides an opportunity to clarify or resolve
legal issues for a wider public benefit, the
courts may find merit in relaxing the usual
costs rules to enable a public-interest matter
to be heard.
In doing so, they play their role in
overcoming the so-called ‘chilling effect’ of
costs for public interest litigation. As Judge
Toohey commented in Australia: “There is
little point opening the doors of the courts if
litigants cannot afford to come in ... the fear, if
unsuccessful, of having to pay the costs of the
other side ... with devastating consequences
to the individual or environmental group
bringing the action, must
inhibit the taking of cases to
“To date, the
court.”
The leading English
Irish courts have
authority on protective costs
considered the
orders (PCOs) is the nongovernmental organisation,
making of a
Corner House Research.
protective costs
The Court of Appeal stated
that “the general purpose of
order in two
a PCO is to allow a claimant
reported cases.
of limited means access to the
court in order to advance his
They declined to
elucidation on a point of law,
case without the fear of an
grant an order in
raises a novel point of law, or
order for substantial costs.”
raises a novel interpretation
The court set out the
both instances, and
of the law. Where it is more
relevant criteria to be satisfied
this is, perhaps,
likely to be an exercise in
for a protective costs order to
unsurprising”
applying familiar principles
be granted, as follows:
of law to new facts, the court
• The issues raised are of
will be less inclined to grant a PCO.
general public importance,
Examples of issues considered to be of
• The public interest requires that those
public importance in English case-law include:
issues should be resolved,
• A fast-track pilot scheme to deal with
• The applicant has no private interest in the
asylum claims (Refugee Legal Centre),
outcome of the case,
• An export credit guarantee consultation
• Having regard to the financial resources
process relating to anti-bribery and
of the applicant and the respondent(s) and
corruption in international trade (Corner
to the amount of costs that are likely to
House Research),
be involved, it is fair and just to make the
• Licences granted to a university for animal
order,
experimentation (British Union for the
• If the order is not made, the applicant will
Abolition of Vivisection),
probably discontinue the proceedings and
• Planning permission regarding a site for
will be acting reasonably in so doing.
rare endangered invertebrates (Buglife),
• Whether a registered social landlord was a
In considering whether a matter raises ‘public
‘public authority’ under the Human Rights
interest’ issues, the English courts attach
Act (Weaver), and
weight to whether the matter truly requires
• Planning permission for a power station on
a site used for bird-watching (McGinty).
Unsurprisingly, the ‘no private interest’
requirement has been subject to much
criticism. Applicants for judicial review are
required to demonstrate ‘sufficient interest’ to
bring the claim in the first place.
To be required also to demonstrate
lack of any private interest appears to be
a contradiction in terms. Moreover, the
suggestion that private interest and public
interest are necessarily mutually exclusive
has been labelled a “false dichotomy”
(Chakrabarti). The Court of Appeal has noted
judicial criticisms of the ‘no private interest’
requirement and recommended that a flexible
approach be adopted towards all aspects of the
Corner House Research guidance (Morgan).
Another potential difficulty for applicants
of a protective costs order relates to legal
representation. In Corner House Research, the
Court of Appeal commented that recipients
of a PCO that permits them to recover costs
if successful should incur only “modest costs”.
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Similarly, in Roche, the Supreme Court
They added that pro bono representation would
ordered the successful respondent to pay the
enhance the merits of the application. Yet
costs of the unsuccessful parties in relation to
both costs capping and the need for pro bono
representation cause difficulties in terms of the the High Court proceedings, on the ground
that the case raised a unique and exceptional
legal representation that the applicant will be
issue of public importance, which “surpassed,
able to afford.
to an exceptional degree, the private interests
It also poses something of a quandary. If
of the two parties”. That a case must be
an issue is of public importance, it may well
exceptional for deviation
require lead as well as junior
from the customary costs
counsel – and yet “modest
rule was confirmed in
costs” would seem to
“If an issue is of
Dunne, where the Supreme
preclude this possibility.
Court overturned a High
public importance,
Court costs order on the
Ireland – ‘after-the-event’
it may well require
basis that the case did
approach
not raise legal issues of
The Irish courts have
lead as well as
special and general public
occasionally exercised
junior counsel –
importance.
their inherent discretion
Needless to say, the afterto disapply the usual costs
and yet ‘modest
the-event approach provides
rule after the event, where
costs’ would seem
plaintiffs with no certainty
they considered the public
as to costs – unlike the
interest of the case to justify
to preclude this
protective costs order.
it. Two Supreme Court
possibility”
To date, the Irish courts
examples are: Curtin and
have considered the making
Roche v Roche.
of a protective costs order
Curtin concerned
in two reported cases. They declined to
the removal of a judge from office and,
grant an order in both instances, and this is,
accordingly, involved novel and crucial
perhaps, unsurprising.
constitutional questions and raised serious
In Village Residents, the court considered
issues around the separation of powers. The
that the case was no different to many other
Supreme Court awarded the unsuccessful
planning judicial reviews, while in Friends
applicant half his costs. It is notable that the
of the Curragh, the court found that the
Supreme Court emphasised that this was an
matter involved applying familiar principles
exceptional case and that it was not desirable
to new facts.
to stipulate a definite rule on exceptions to
More developed case law on PCOs
the usual costs rules.
Cover story
has made clear that the threshold for a
PCO is higher than this, requiring issues
of application beyond the individual, or
clarification of issues of legal complexity, or
a novel point of law or interpretation. Not
every judicial review will satisfy this high
threshold.
Further afield
Other common law jurisdictions have
developed various means of overcoming
the ‘chilling effect’. In South Africa, where a
constitutional case is taken in good faith, an
unsuccessful plaintiff will not be ordered to
pay costs (Gauteng and Biowatch).
Canadian courts have the power to order
the state to fund the costs of a public-interest
case by way of an ‘interim costs order’
(Okanagan). Australian courts enjoy the
power to make ‘maximum costs orders’ –
thereby capping costs which the respondent
may recover where the case is brought in the
public interest (Corcoran and Haraksin).
The approaches may differ, but what is
interesting is that all these common law
jurisdictions recognise the justification for
modifying costs rules where a public interest
issue is at stake.
This much is clear – there are options
available to courts to facilitate hearing a
matter which may benefit the wider public. If
Medical Justice had not obtained a protective
costs order, an important issue of access to
justice might have gone unheard. A more
nuanced approach is called for in publicinterest cases. G
Look it up
Cases:
• Biowatch Trust v Registrar Genetic Resources
and Others (CCT 80/08 [2009] ZACC 14)
• British Columbia (Minister of Forests) v
Okanagan Indian Band ([2003] 3 SCR 371,
2003 SCC 71)
• Corcoran v Virgin Blue Airlines Pty Ltd ([2008]
FCA 864)
• R (ex parte Corner House Research) v
Secretary of State for Trade and Industry
([2005] EWCA Civ 192)
• Curtin v Clerk of Dáil Eireann & Ors ([2006]
IESC 27)
• R (on the application of the British Union for
the Abolition of Vivisection) v Secretary of State
for the Home Department [2006] EWHC 250
• R (on the application of Buglife – the
Invertebrate Conservation Trust) v Thurrock
Thames Gateway Development Corporation &
Rosemound Developments Limited [2008]
EWCA Civ 1209
• Dunne v Minister for the Environment, the
Attorney General and Dun Laoghaire-Rathdown
County Council [2005] IEHC 94; [2007] IESC
60
• Friends of the Curragh Environment Limited v
An Bord Pleanála & Ors [2006] IEHC 243
• Gauteng Provincial Legislature In re: Gauteng
School Education Bill of 1995 [CCT39/95)
(1996) ZACC 4; 1996 (4) BCLR 537; 1996
(3) SA 165 (4 April 1996)]
• Biowatch Trust v Registrar Genetic Resources
and Others (case CCT 80/08 [2009] ZACC 14)
• Haraksin v Murrays Australia Ltd [2010] FCA
1133 (20 October 2010)
• R (ex parte Medical Justice) v Secretary of
State for the Home Department [2010] EWHC
1925
• McGinty, Re Judicial Review [2010] CSOH 5
• Morgan v Hinton Organics (Wessex) Ltd &
CAJE [2009] EWCA Civ 107
• R (on the application of the Refugee Legal
Centre) v Secretary of State for the Home
Department [2004] EWCA Civ 1239
• Roche v Roche [2010] IESC 10
• Village Residents Association Ltd v An Bord
Pleanála and McDonalds [2000] 4 IR 321
• Weaver v London Quadrant Housing Trust
[2009] EWCA Civ 235
Literature:
• ‘The Costs Barrier and Protective Costs Orders
at www.pila.ie
References:
• Toohey J’s address to the International
Conference on Environmental Law (1989)
quoted in Blue Mountains Conservation
Society Inc v Delta Electricity [2009]
NSWLEC 150
• Chakrabarti S, Stephens J, Gallagher C,
Whose Cost the Public Interest? (2003)
Public Law 697
23
24
Profile
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Pic: siobhan byrne
JIM’LL
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
>>
Fast facts
> Thirteen-year legal journey to obtain
justice
> Key items of evidence lost by Garda
Síochána
> Judgment in favour of McFarlane appealed
to Supreme Court
> Second challenge alleges that
“systematic” delays by the prosecution
had fatally undermined McFarlane’s right
to a fair trial
> Substantive case against McFarlane
collapses, but a European challenge in
relation to delays is pursued on a point of
principle
Profile
In a David versus Goliath confrontation,
solicitor James MacGuill took on the might
of the State – and three senior counsel – in
the Grand Chamber of the European Court of
Human Rights. Colin Murphy spoke to him
about litigating to win
J
Colin Murphy is a journalist and
documentary maker in Dublin, specialising
in social and cultural affairs. His radio
series From Stage to Street is currently
being broadcast on RTÉ Radio 1 on
Saturdays at 7.30pm. A selection of his
work can be found at www.colinmurphy.ie
ames MacGuill made his final point and sat down.
He had just finished the biggest case of his career.
In front of him were the 17 judges of the Grand
Chamber of the European Court of Human
Rights. Across the aisle sat the three senior
counsel against him, representing Ireland.
MacGuill had just finished responding to a series of
questions posed by the judges, which had followed his
presentation of his case. As the judges had asked their
questions, MacGuill and his assistant – a young apprentice,
Aimée McCummiskey – had noted them, and as he
answered them, she ticked them off. But as he sat down, he
saw she was pointing urgently to an unticked question.
MacGuill jumped back to his feet and just managed to
get in his answer to that last, neglected question. A short
time later, he and McCummiskey were standing outside in
the Strasbourg spring air again. There were no colleagues
to clap them on the back and no one to offer an opinion
on how the case had gone. They thought about lunch and
checked the time. It was 11.30am. The entire case had
taken less than two hours.
MacGuill’s client was Brendan McFarlane, a one-time
leading member of the IRA, now a community worker
in West Belfast. McFarlane had an extraordinary ‘career’
fix it
25
26
Profile
with the IRA (see panel). In 1983, he escaped
from the Maze Prison, where he was serving
a life sentence for his role in a notorious
pub attack and, subsequently, was allegedly
involved in the kidnapping of supermarket
executive Don Tidey, during which a trainee
garda and a soldier were killed.
McFarlane was recaptured in 1986 and
served out the rest of his sentence without ever
being charged with the Don Tidey kidnap. He
was due for final release in 1998 – but on the
day of his release, he was arrested and charged.
Law Society Gazette
Jan/Feb 2011
This is your life
Brendan ‘Bik’ McFarlane was training to be
a priest when the Troubles broke out, and he
abandoned his studies and returned home to
Belfast to join the Provisional IRA. In 1976, he
was sentenced to life imprisonment for his part
in an attack on the Bayardo Bar in the Shankill
Road area of Belfast, in which five people were
killed.
Imprisoned in the Maze, he was the IRA’s
officer commanding during the hunger strikes
of 1981, and later led the mass escape
from the Maze of 1983. In December that
year, supermarket executive Don Tidey was
Opportunity knocks
McFarlane hired James MacGuill, a prominent
Dundalk solicitor (later to become president
of the Law Society), and the two embarked on
a legal journey that would become a 13-year
Court of Human Rights in the wake of the
odyssey.
Supreme Court’s rejection of his complaint
MacGuill’s first challenge to the charges
about unreasonable delays. Now that the
was based on the fact that the Garda Síochána
substantive case had collapsed, there may have
had lost key items of evidence, which allegedly
been no pressing need to pursue that European
had McFarlane’s fingerprints on them. The
challenge, but McFarlane decided to persist
High Court found in favour of McFarlane,
with it on a point of principle.
but the state appealed to the
Supreme Court. In 2006,
Magic roundabout
that court found in favour of
“This was the
The European Court had
the state – over six years after
solicitor’s equivalent found against Ireland twice
McFarlane’s first complaint
before on issues of delays, in
of getting to play at
was lodged.
the Doran and Barry cases,
MacGuill then launched
and there were (and are)
Lansdowne Road for
a second challenge, alleging
other cases pending against
Ireland. You’re not
that “systemic” delays by
the state on issues of delay.
the prosecution had fatally
The state saw an opportunity
going to get more
undermined McFarlane’s
to overturn these precedents
than one chance of
right to a fair trial. The delay
and applied to have the case
“appeared to be vindictive”,
heard by the court’s Grand
doing this”
he says. “They should have
Chamber of 17 judges.
prosecuted him when he had
For MacGuill, this
the fairest chance of defending himself.”
provided a unique challenge and opportunity.
The High Court dismissed this complaint,
Due to a scheduling difficulty for the
and MacFarlane appealed to the Supreme
counsel involved, and with the agreement
Court. In 2008, they ruled that the trial could
of McFarlane, it fell to him to take on the
proceed. But when it did, later that year, the
advocacy of the case before the Grand
case collapsed after the court ruled that garda
Chamber.
evidence was inadmissible.
“This,” he says, “was the solicitor’s
McFarlane was acquitted – but there
equivalent of getting to play at Lansdowne
remained one legal challenge outstanding.
Road for Ireland. You’re not going to get
James MacGuill had applied to the European
more than one chance of doing this.”
Sale of the century
James MacGuill on solicitors arguing before the
courts: “As solicitors, we have had a right of
audience in every court since 1961. Colleagues
in other common law jurisdictions have had to
struggle to win this right, and only get it on limited
terms. And yet they use it more than we do – what
you get for nothing, you don’t appreciate. We
shouldn’t waste the opportunity we have by not
using it. But economics kicks in, in the way the
fees are structured: you’re almost penalised if you
do both the preparation and the advocacy of a
www.gazette.ie
case, as you get the same fee, so you may as well
bring in a barrister. If I was paid properly to do it,
I’d do it all the time.
“It’s easier to do the Supreme Court, where you
get a day, and do it on that day. But in the High
Court, your case may not get on, and that screws
up your day, and possibly your week. We can see
changes coming from London, especially on the
commercial side. The Americans are not used to
the split profession, and increasingly don’t want
cases handed over.”
kidnapped by an IRA gang, McFarlane allegedly
among them. Gardaí and the army traced the
gang to Derrada Wood in Co Leitrim and, in an
ensuing shoot-out, a trainee garda and soldier
were killed. Tidey escaped, but so did the gang.
McFarlane was later captured in the
Netherlands and extradited to Northern Ireland
to complete his sentence. On the day he was
released, he was arrested and charged with
Tidey’s kidnapping. That case was eventually
held in June 2008; it collapsed when garda
evidence was ruled inadmissible, and
McFarlane was acquitted.
For all that, the task was daunting – but
he didn’t see it as reckless and argues that, in
fact, solicitors should take to their feet more.
“I have argued in most of the Irish courts.
It’s not a given that the barrister is always the
best bet, and it’s certainly not a given that the
solicitor is always inadequate for the job.
“If the case involved an area of law that
the solicitor isn’t comfortable with, then
they shouldn’t be reckless and do it, but if it
involves facts or law that even a truly expert
barrister can’t properly master in time, then
the barrister shouldn’t be asked to do it.
“We had been with the case from day one,
so we weren’t going to be wrong-footed easily
on the details of domestic proceedings or
the underlying facts of the case. That meant
we were able to concentrate on what the
court might be interested in, such as points
of broader application from a European
perspective.
“In any case, you get a more predictable
reception in Strasbourg than in the Four
Courts,” he jokes. “The Strasbourg courts
are not going to make a distinction between a
solicitor and a barrister.”
Generation game
MacGuill appreciated the rigours of preparing
and presenting a case before the European
Court, where the scheduling, paperwork and
arguing of a case are all far more disciplined
than in the Irish system. The initial challenge
lay in the paperwork. The court provided
him with a precise questionnaire, and he
was entitled to submit a 30-page memorial –
which he had to distil from the 50 or 60 boxes
of files in his office.
He worked on it mostly at weekends – “you
can’t do this stuff when the phone is ringing”
– and focused on making everything as
succinct as possible. “You have to decide what
are the truly relevant materials. You get no
points out there for being lazy and throwing
something in as a make-weight.”
He found the court procedures supportive
and the personnel helpful and responsive.
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
“The court supervises the work so that you
address the issues the court is concerned with,
and you don’t have an opportunity of dodging
the hard questions. The personnel make sure
that, by the time a case gets to the judges, the
preparatory work has all been done.”
Asked what his key piece of advice to a
solicitor facing the European Court would
be, this is the aspect he focuses in on: “If you
don’t take time and care to do the paperwork
right, you’re on the back foot thereafter.
Paperwork is a solicitor’s friend: we’re good at
that, we’re disciplined.”
On the day, the state had 30 minutes to
present its case, with MacGuill having 30
minutes to respond; after that, they each faced
a series of questions from the judges and were
each given ten minutes to respond.
Profile
27
The court found in
favour of McFarlane
by 12 to five. It
concluded that the
remedies proposed
by the state would
not have provided an
effective remedy to
McFarlane and found
that the duration of the
criminal proceedings
was excessive, violating
article 6, section 1 of
the Convention for the
Protection of Human
Rights and Fundamental
Freedoms, which
guarantees a fair trial
“within a reasonable
time”. McFarlane was
awarded compensation
of €15,500.
Pic: siobhan byrne
The persuaders
“It was a culture shock. You arrive at the
building at 8.30am; at nine, you make a
courtesy call to the president of the court; the
Are you being served?
case starts at 9.30am, and you’re walking out
The overall experience
of court at 11.30am.
reinforced MacGuill’s
“Forty minutes sounds like it’s a short
conviction that the
period of time, but that’s possibly because
Irish courts are badly
our courts are too tolerant of content-free
in need of reform.
filibustering. You can communicate a lot of
“We should be
information in 40 minutes. If questions are
hopping out of the
put right up to you and you answer them, it’s
18th century, where we
very efficient.
“Other courts impose strict
time limits: the Court of Justice
in Luxembourg has a limit of 30
“You get a more predictable reception in Strasbourg
minutes; the US Supreme Court
than in the Four Courts,” he jokes. “The Strasbourg
has a limit of 20 minutes. We’ve
compel people to reduce their
a lot to learn from that.
cases to paper and to agree with
courts are not going to make a distinction between
“Giving airtime to bad
the other side the areas that are
a solicitor and a barrister”
points can devalue your good
really an issue and those that
points. People should have
aren’t. And hearing dates have
the discipline of getting their
to mean something. You have
are at the moment, and getting ahead of the
arguments down in writing, and then use the
small businesses involved in a court case, and
game in the 21st century. We should be using
oral presentation to highlight the most critical
they’re waiting around for a couple of days to
technology all the time.”
points, to take issue with developing themes,
get on. It’s hugely wasteful.”
A key development, he says, would be
and to answer questions.
The key to reform is the judiciary, and he
to televise proceedings in the appellate
“You shouldn’t have to come in and tell
believes there is “every indication that the
courts (where there are no witnesses). The
professional judges what the case is about.
judges want to be progressive,” citing the
European Court proceedings are broadcast
Everyone should be sitting down in a
example of the Commercial Court, which has
(with a delay) on the internet (at www.echr.
courtroom knowing that the documents have
“made huge strides forward”.
coe.int), and this “possibly has the effect of
been prepared well and have been studied and
“But solicitors have to improve their
making people think more carefully about
taken seriously by everybody there.”
own professionalism,” he notes. A “culture
what they’re saying,” he speculates. “It is an
The case itself was straightforward –
change” is required, that would see solicitors
important pro-citizen tool that can make the
barring the moment when it took his young
“frontloading the work – doing the work in
processes of the courts available to the public.
assistant to point out his omission.
advance, rather than as you go along. This
It’s the coming thing, and what we should be
The state’s core argument was that
doesn’t require any big legislative change, just
doing is working out where it’s appropriate
McFarlane had not exhausted the domestic
a change in approach.” G
and where it isn’t.”
remedies available to him by not seeking
And other reforms?
damages arising from the delays. MacGuill
See the court in action
“I don’t understand the reluctance to allow
pointed out that nobody had ever successfully
video-links in civil and commercial type
sued for damages in such a case, and that, as
The webcast of McFarlane v Ireland can be
cases,” he says. “We need longer working
McFarlane’s main objective had been to have
found on www.echr.coe.int in the section
hours for the courts. We need to limit the
his trial stopped, it was unreasonable to expect
‘webcasts of public hearings’.
time that’s available for argument. We should
him to have sought to have the case expedited.
28
Mortgage enforcement
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
lend me
arrears
The legal approach to residential mortgage default has changed, and the updated Code of Conduct on
Mortgage Arrears is likely to have a significant effect – at least in the short term – on the number of
residential mortgage suits. Cian O’Sullivan drops off the keys
Cian O’Sullivan
is a solicitor and
registered tax
consultant with
Mason Hayes &
Curran
O
Where a mortgage is unsustainable or where a
n 6 December 2010, the Central
borrower is not willing to enter into an alternative
Bank published its updated Code of
repayment arrangement, the lender must inform the
Conduct on Mortgage Arrears. The code
borrower of other available options, such as voluntary
operates with effect from 1 January
surrender/sale or trading down. Proceedings for
2011 and applies to loans to
repossession must only issue as a last resort.
individuals in respect of their principal
Where proceedings are already extant, they must be
private residence. The code implements a number
stayed while a borrower complies with any alternative
of recommendations issued by the Expert Group on
repayment arrangements. Where property is disposed of
Mortgage Arrears and Personal Debt.
on foot of a repossession order, the lender must notify the
The code supersedes its predecessor – published on
borrower of the balance outstanding, the costs arising out of
17 February 2010 – and specifies the procedures that
the disposal that have been added to the loan account, and
lenders must follow where a borrower falls into arrears or
the interest rate being charged on the remaining balance.
where he contacts a lender to inform it that he is in danger
In any proceedings, the lender will have
of going into financial difficulties and/or
to demonstrate compliance with the code if
is concerned about going into mortgage
“Proceedings
its application is to succeed.
arrears. Pursuant to section 117(1) of the
Central Bank Act 1989, all lenders must
for repossession
Procedures in the High Court
comply with the code.
must only issue
A lender seeking an order for possession
In essence, a lender must not seek to
and/or sale of a commercial or residential
repossess a residential property until every
as a last resort”
property should commence proceedings by a
reasonable effort has been made to agree
special summons, which is returnable before
alternative repayment arrangements with
the Master of the High Court. The master may transfer
a borrower. This involves consideration of the borrower’s
the matter to the judge’s list if all necessary affidavits have
personal circumstances and standard forbearance options,
been delivered by the parties. The master does not have
such as converting to interest only, deferring payments for
jurisdiction to make an order for possession or sale.
some time, extending the mortgage term or capitalising
Following transfer to the judge’s list, the judge may
arrears and related interest.
Lenders are prevented from imposing charges/surcharge make an order for possession and sale at the hearing of the
special summons or may send the matter on for plenary
interest on mortgage arrears to which the code applies.
hearing if the borrower satisfies the judge that there is a
Also, proceedings seeking to enforce a mortgage cannot
fair or reasonable probability of a real or bona fide defence
issue unless 12 months has expired after arrears first
on the merits. The norm is for an order for possession and
arise. The 12-month period will not start to run while a
sale to be made.
borrower is complying with any alternative repayment
Adjournments will usually be granted if the borrower
arrangements. The ‘12-month moratorium’ does not apply
can convince the court that the arrears owing will
where a borrower does not cooperate with a lender.
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Mortgage enforcement
>>
Fast facts
> Updated Code of Conduct on Mortgage
Arrears implements recommendations
issued by the Expert Group on Mortgage
Arrears and Personal Debt
> Lender must not seek to repossess a
residential property until every reasonable
effort has been made to agree alternative
repayment arrangements
> Proceedings seeking to enforce a
mortgage cannot issue unless 12 months
have expired after arrears first arise –
this period will not start to run while a
borrower is complying with any alternative
repayment arrangements
> Sale by consent is usually in the
borrower’s best interests, as more of the
indebtedness will likely be paid off
> Enforcement proceedings must issue
within a certain time to avoid becoming
statute barred
be discharged within a reasonable time.
Moreover, orders for possession and sale are
usually stayed for a few months, depending
on the type of property involved and the
circumstances of the case.
If the High Court makes an order for sale,
the sale of the property will proceed under
the supervision of the Examiner’s Office (see
order 55 and appendix G of the Rules of the
Superior Courts). The court order is lodged in
the Examiner’s Office, and a notice to proceed
is served on the borrower with a return date
before the examiner.
The examiner must satisfy himself
regarding the existence of all mortgages
affecting the property and their priorities.
When the examiner is so satisfied, the lender
issues a motion before the examiner to settle
the particulars and conditions of sale and
nominates an auctioneer. Once the conditions
of sale are settled, the sale can proceed and is
typically by way of public auction.
If the property is sold, the sale proceeds
are lodged into court (Accountant’s Office).
The examiner completes a certificate of
incumbrances, which forms the basis of
a further court application to pay out the
funds. Stamp duty totalling 5% of the sale
proceeds is payable.
Stamp duty, and additional legal fees,
can be avoided if all parties consent to the
sale (and possession, if necessary) without a
court order. A sale by consent is usually in
the borrower’s best interests, as more of the
indebtedness will likely be paid off, because
a voluntary sale usually obtains a better price
and the legal and transaction costs of a forcedsale process (which are for the account of the
borrower) are thereby avoided.
Where the sale proceeds do not exceed the
amount of the indebtedness, a borrower will
be liable for the shortfall. This liability will
rank equally with other unsecured creditors.
A lender seeking to obtain a money
judgment in the High Court for the amount
29
U.S. / IRELAND LEGAL SYMPOSIUM 2011
“DOING BUSINESS IN THE U.S. / IRELAND AND EUROPE CRITICAL LEGAL ISSUES FOR U.S. AND IRISH COMPANIES”
www.brehonsymposium.com
Wednesday 11 – Friday 13 May, 2011
4* Knockranny House Hotel & Spa, Westport, County Mayo
The Brehon Law Society, Philadelphia is delighted to present
the inaugural U.S./Ireland Legal Symposium, which this year
will address key legal and commercial issues for U.S. and
Irish Companies in the following areas:
I. Accessing Capital and Starting up a Business
II. Conducting Business / Comparative Analysis
III. Litigation and Dispute Resolution / Ireland a forum
for Alternative Dispute Resolution
This unique event will promote Ireland, Europe, and the
U.S. as destinations for foreign direct investment by way of
debate and presentation amongst the top legal, financial,
tax and accounting professionals. Irish and U.S. lawyers
will also have the opportunity to network and build business
relationships with various business leaders.
For more information and to register online,
visit: www.brehonsymposium.com
Price: €595.00*
Members of the Law Society & Bar Council: €495.00
Early Bird: €450.00 (Closes 31 March 2011)
Student & Trainee: €250.00
Gala dinner only (partner): €75.00 per ticket
* Conference registration includes access to all sessions,
opening night welcoming and networking reception and
gala dinner on second night.
CPD certification will be issued for the full day and a half of
seminars.
For information regarding speaker and / or sponsorship opportunities, please contact
Katie Cadden, Solicitor at 087 900 7062 or brehon@prwest.ie
Presented by The Brehon Law Society of Philadelphia, in conjunction with Temple University
Beasley School of Law, Western Development Commission and Mayo County Council
ALLIED IRISH BANKS P.L.C.
NOTICE TO ALL SOLICITORS
Allied Irish Banks p.l.c., wishes to advise all solicitors that is has
recently decided to withdraw the provision of executorship/trustee
services. Accordingly, it will not be in a position to accept the
following appointments:
• any future executorships appointed by Will;
• any future trusteeships appointed under a Will; and
• any future trusteeships arising under an inter-vivos
settlement.
The Bank requests that any solicitors with clients who have
appointed or wish to appoint the Bank as executor and/or trustee
under a Will to advise their clients to make alternative arrangements
as the Bank will not be in a position to accept such appointments
should the Will proceed to probate.
If you have any queries please contact Mr. Edmond T. O’Regan or
Ms. Mary Dwan at Allied Irish Banks p.l.c., Executor and Trustee
Services, P.O. Box 512, Bankcentre, Ballsbridge, Dublin 4.
Contact Details
Mr. Edmond T. O’Regan
Tel. No. 01-6413524, e-mail: edmond.t.o’regan@aib.ie
Ms. Mary Dwan
Tel. No. 01-6413526, e-mail: mary.t.dwan@aib.ie
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Mortgage enforcement
outstanding on a commercial/residential
mortgage should commence proceedings by
a summary summons. A lender is entitled to
obtain summary judgment for the amount
outstanding if an appearance is not entered
to a summary summons within eight days of
service. If an appearance is entered, a lender
must issue a notice of motion before the
master grounded upon affidavit that exhibits
any relevant documents.
If the master is satisfied that there is no
bona fide defence to the claim, he may grant
liberty to enter judgment. If so, normal
enforcement procedures can follow.
Procedures in the Circuit Court
With effect from 1 December 2009, section
101(5) of the Land and Conveyancing Law
Reform Act 2009 gives the Circuit Court
exclusive jurisdiction with regard to all
residential mortgages created after that date.
The Circuit Court also has jurisdiction
for non-residential mortgages where
the property’s rateable valuation is less
than €252.95. The 2009 act applies
to commercial mortgages unless the
mortgage deed provides otherwise or unless
specifically excluded by the 2009 act.
Section 97 of the act provides that a
lender shall not take possession of a
residential property without a court order.
However, a court order is not required
where a borrower consents to a lender taking
possession. The section provides that such a
consent must be in writing and made seven
days prior to the lender taking possession.
Section 100 provides that a lender’s power
of sale becomes exercisable if, among other
things, there has been default in making
repayments for three months, or some
interest or part interest and part capital is in
arrears and unpaid for two months, provided
in each case that 28 days’ notice has been
given.
With effect from 8 July 2009, the Circuit
Court Rules (Actions for Possession and Well
Charging Relief) 2009 give a county registrar
jurisdiction to make an order for possession
(but not sale) where either no appearance
Look it up
Legislation:
• Central Bank Act 1989, section 117(1)
• Circuit Court Rules (Actions for
Possession and Well Charging Relief)
2009 (SI 264/2009)
• Land and Conveyancing Law Reform Act
2009
• Rules of the Superior Courts, order 55
and appendix G
• Statute of Limitations 1957, section 11
Friends, Romans,
countrymen...
has been entered or a replying affidavit
disclosing a prima facie defence has not been
filed.
The intention behind the rules is to
simplify and speed up the mortgage
enforcement process. As of November 2010,
leave has been granted by Mr Justice Peart,
allowing a borrower to judicially review
the exercise of this power on the basis
that, among other things, it should only be
exercised by a judge, as
is the case with the High
“It is likely
Court.
taking no further action until the moratorium
expires. (The situation is very different where
a borrower passes away and may require an
application to court. See ‘Night of the living
debt’, p28 of the Jan/Feb 2010 Gazette).
Significant effect
It is likely that the number of commercial
mortgage proceedings will continue to rise
over the next number of years as a result of
the recapitalisation and
reorganisation of Irish
that the
banks. It is reasonable to
assume that the code will
number of commercial
Time limits
have a significant effect on
mortgage proceedings
Enforcement proceedings
the number of residential
must issue within a certain
mortgage suits, at least in
will continue to rise
time to avoid becoming
the short term.
over the next number
statute barred. In assessing
It is contended by some
a case, it is important to
commentators that the
of years as a result of
consider the definition of
sale of a large number of
the recapitalisation and
‘default’ contained in a
repossessed properties will
mortgage or in a facility
serve to further undermine
reorganisation of Irish
letter or other terms and
values, which is neither in
banks”
conditions. Usually, nonlenders’ nor borrowers’
payment coupled with a
interests. However, the
demand for payment constitutes default. If so,
alternative view is that this is necessary to
a lender has six years (section 11 of the Statute
provide a true market price.
of Limitations 1957) from default to issue
Whichever economic proposition is
proceedings.
correct, what is clear is that the legal approach
The code does not address the issue of
towards residential mortgage default has
whether or not the statute stops running while
changed and is well summarised by the
the ‘12-month moratorium’ is in effect, so one
introduction to the code, which states: “All
should assume it does not. Therefore, despite
[residential mortgage arrears] cases must
the wording of the code, a lender may have to
be handled sympathetically and positively
consider issuing ‘protective proceedings’ in
by the lender, with the objective at all times
cases where the statute will run out prior to
of assisting the borrower to meet his/her
the expiration of the 12-month deadline, but
mortgage obligations.” G
31
32
Lay-off
Employment law
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
my case
There is a misconception among many employers that employees who have been placed on lay-off are no longer
entitled to be paid, but, except in limited circumstances, that is not the case. Richard Grogan puts in the overtime
Richard Grogan
is principal of
Richard Grogan &
Associates Solicitors,
also registered tax
consultants
T
here is a misconception that when
an employee is placed on lay-off,
the obligation of an employer to pay
the employee ceases. Except in very
limited circumstances, that is not the
position – as evidenced by the large
number of claims being brought before the Rights
Commissioner Service under the Payment of Wages Act,
relating to payment of individuals while on lay-off. The
misconception appears to arise by virtue of the provisions
of section 11(1) of the Redundancy Payments Act 1967.
Section 11(2) refers to circumstances where, in any week,
an employee’s remuneration is:
• Less than half of his normal weekly remuneration, or
• His hours of work are reduced to less than one-half of
his normal weekly hours, or
• The reduction in remuneration of hours is caused by the
diminution either of the work provided by the employer
for his employee, or of a kind that, under his contract,
the employee is employed to do.
Some employers seem to be of the opinion that, once
employees are placed on lay-off by following the
procedures under the Redundancy Payments Acts, there is no
requirement to pay. However, the provisions of section 5 of
the Payment of Wages Act 1991 provide, in particular: “An
employer shall not make a deduction from the wages of
an employee (or receive any payment from the employee)
unless:
a)The deduction (or payment) is required or authorised to
be made by virtue of any statute or any instrument made
under statute [section 5(1)],
b)The deduction (or payment) is required or authorised to
be made by virtue of a term of the employee’s contract
of employment included in the contract before, and in
force at the time of, the deduction or payment, or
c)In the case of a deduction, the employee has given his
prior consent in writing to it.”
Where a contract of employment has a specific provision
providing for non-payment of wages during a period of
lay-off, then there is no obligation on an employer to pay
wages during that period of lay-off. Unless there is such a
contract in existence so specifying, then the employer is in a
position of having to get the consent of the employee not to
pay wages. It is highly unlikely that any employee is going to
consent to not being paid during lay-off.
There is an exception to this – namely, where there is
a custom or practice of not paying during lay-off. Such
a custom or practice must be reasonable, certain and
notorious.
Payment during lay-off
The issue of payment during lay-off was considered by
Mr Justice White in the case of John Lawe v Irish Country
Meats. In that case, the court referred to the legal position
that is helpfully summarised in Forde Employment Law
(p81), where it is stated: “Absent a term in the contract to
the contrary, the employer’s fundamental obligation is to
pay the agreed remuneration for the time of work during
which the employee is prepared to work (Hanley v Pearse &
Partners). Ordinarily, an employer is free to lay off workers
for any reason, provided he continues to pay them. A layoff without paying the normal agreed remuneration can be
treated by the employee as a dismissal.”
The court referred to the case of Bond v CAV Ltd and
Neads v CAV Limited, where this matter was considered
by Mr Justice Payne of the High Court, Queen’s Bench
Division (see p366, paragraph 48): “I begin by referring to
several authorities on the proposition at common law. The
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Employment law
>>
Fast facts
> Misconception that employers entitled to
lay off employees without pay due to lack
of available work
> Large of number of claims beginning under
the Payment of Wages Act for payment of
individuals while on lay-off
> Are lay-off procedures being abused as
a way of avoiding paying redundancy
payments?
> Many employers are not seeking the
advice of solicitors in advance of
implementing lay-offs until after a claim is
made by an employee
> Where redundancies or lay-offs are being
considered, legal advice is imperative
33
34
Employment law
first one is Devonald v Rosser, which established
in common law there is no right to lay off
without payment, except in very limited
circumstances.”
Paragraph 50 continues: “It is therefore
plain that there is no general right to lay off
without pay at common law, but such a right
exists only in very limited circumstances.”
It is accepted that where there is a custom
of a trade, which is reasonable, certain and
notorious, it is possible to provide for a lay-off
without pay. In order to succeed, an employer
must prove a custom or general usage to be
so well known as to be properly read into the
contract. It must be, as Lord Denman CJ held
in R v Stoke-Upon-Trent, “a custom so universal
that no workman could be supposed to have
entered into this service without looking to it
as part of the contract”.
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
for a lay-off without pay, an employee will be
The law on this issue would appear to be
entitled to bring a claim under section 5(2)
reasonably clear. There is no right to lay off
of the Payment of Wages Act 1991 for wages
a worker without paying that worker during
during the period of the lay-off.
the lay-off period, unless there is a custom
It would appear that, in the
or practice in the industry or
case of an employer who is
the particular employment
“Lay-off procedures
considering laying off staff, it
that is so well known and
is important, when obtaining
notorious that no worker
are being abused by
legal advice, to ascertain
could be other than aware
certain employers as the position in relation to
of it.
There is a right to lay
a method of avoiding the employees’ contracts. If
the contracts do not have a
off a worker without pay
paying redundancy
specific clause allowing for
where there is a specific
lay-off without pay, or if
clause in their contract of
payments”
there is no notorious custom
employment authorising
within the business itself or
an employer to lay off
the industry for lay-off without pay, in those
without pay. Where an employer lays off a
circumstances it would be important for an
worker without pay and there is no notorious
employer to consider whether this is a real laycustom, nor a clause in a contract allowing
Appeals – getting it all wrong
Claims under the Payment of Wages Act in
the past five to seven years were invariably
dealt with before the Appeals Commissioner
or compromised before they came on for
hearing. Appeals of payment of wages claims
were relatively few in number. An employer
received a payment of wages claim, the
employer obtained the services of a solicitor,
and matters were dealt with. Now, because
of the size of claims or because the employer
has simply ignored the initial complaint to
the Rights Commissioner Service, appeals are
having to be considered.
One issue that is consistently coming to light
in respect of appeals is that the procedures in
relation to appeals to the Employment Appeals
Tribunal are not being complied with.
Section 7(2)(b) of the Payment of Wages Act
1991 provides: “An appeal under this section
shall be initiated by a party by his giving,
within six weeks of the date on which the
decision to which it relates was communicated
to him
a)A notice in writing to the tribunal containing
such particulars (if any) as may be specified
in regulations under subsection (3) and
stating the intention of the party concerned
to appeal against the decision, and
b)A copy of the notice to the other party
concerned.”
There is a misconception that simply lodging
the appeal with the Employment Appeals
Tribunal is sufficient. Service on the EAT is not
sufficient in itself. (See Riehn v Royale and
Tirmova v Vitra Ireland Limited.)
The provisions of section 7(2), by the
use of the word ‘shall’, contain a mandatory
requirement of service on the other party
concerned within the six-week period (see
Shahid Sultan v Nasem) The use of the word
‘his’ before the word ‘giving’ indicates that
there is a requirement that the party personally
serve a copy on the other party. It is not
sufficient to believe that service on the EAT is
sufficient.
Where the person making the appeal gives
uncontested evidence of having effected
service by ordinary post, the EAT has held that
the onus is on the other party to establish that
it did not receive it. (See Morris v Department
of Justice, Equality and Law Reform (PW
24/205).)
Where the provisions of section 7(2)(a) have
not been complied with, the EAT will hold that
it does not have jurisdiction to hear the appeal
of a Rights Commissioner decision under the
Payment of Wages Act 1991. The fact that the
party against whom the appeal has been taken
has entered an appearance, is in attendance,
and has been notified of the appeal by the
EAT is irrelevant. The party against whom the
appeal has been taken simply has to put it to
the EAT that no notification has been received
by the party against whom the appeal has been
taken directly from the party appealing.
It is then a matter for the party appealing to
show that he served the proceedings directly
upon the other party within the six-week period
of time. There is no provision in the legislation
to allow for an extension of time. The use of
the word ‘shall’ means it is mandatory.
Because of the importance of appeal
documentation being sent and having a
record of same, it is important that the appeal
documentation is either hand delivered to the
other side, against whom you are appealing,
or is sent by recorded registered mail. In the
alternative, a certificate of posting by ordinary
prepaid post would be sufficient.
This is not an academic issue. It is
arising weekly before the EAT. I would refer
practitioners to two recent cases, PW31/2009
and PW200/2009. In both cases, the party
appealing and the party against whom the
appeal had been brought were in attendance.
In neither case had the respondent claimed
that they had not received a copy of the notice
of appeal from the tribunal.
In one case, the party appealing appeared in
person. In the second, they were represented
by a firm of solicitors. In PW31/2009, the
respondent was represented by this office. In
PW200/2009, the respondent was represented
by a citizens’ rights centre. In both cases,
the defence at the outset was raised under
the provisions of section 7(2). In neither
case could the appellant show compliance
with service directly upon the respondent. In
both cases, the appeals were dismissed on
the basis that the tribunal had no jurisdiction
to hear the appeals. This particular defence
is notorious. By this, I mean that it is known
by both those of us who practise in the legal
profession and by non-legal practitioners.
While this defence is one that the EAT rightly does not like, it is one that we as
practitioners must utilise for the purposes of
representing our clients. It is a simple matter
to get it right. The consequences of not getting
it right can be that an employer who has a
good defence to a payment of wages claim, or
an employee who has a good appeal against
a decision by a Rights Commissioner, will
effectively be denied an opportunity to do so
because of failure to comply with a very simple
procedure.
Pending the law on this issue being
changed, it is a matter of getting it right or it
going horribly wrong.
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
“Many employers are
being advised in respect of
redundancies and lay-offs
by individuals who are not
qualified legal advisors but
purport to provide quasilegal services under the
guise of HR consultancy
services”
off, with a real potential
for re-engagement after
a short period of time,
or whether the employer
should immediately
commence the
redundancy procedure
and make the employees
redundant.
There is a worrying trend developing at the
present time, in respect of which a number of
claims are going to the Rights Commissioners
Service under the Payment of Wages Act, where
employers are placing employees on extended
lay-off where there is no real potential for
re-engagement. I have a concern that layoff procedures are being abused by certain
employers as a method of avoiding paying
redundancy payments by placing employees
on long-term lay-off, where there is no real
potential for re-engagement, in the hope that
the employees will not claim redundancy.
Employers who do so run the significant risk
of a claim for non-payment of wages during
the period of the lay-off.
There is a further risk that an employer runs
in these cases. Where an employee is placed
on temporary lay-off, it would appear that
this does not impact on the entitlement of the
employee to holiday pay,
nor to payment in respect
of public holidays. Again,
it is important to ensure
that a contract is in place
that makes provision for
non-payment during layoff, as otherwise there is
a continuing entitlement
to these payments, unlike the Payment of Wages
Acts, where the award can only be the amount
of the actual loss. In the case of a claim in
respect of annual holidays and public holidays,
a Rights Commissioner or the Labour Court
is entitled to award, in addition, compensation
for failure to pay these sums.
Unfortunately, many employers are not
seeking the advice of solicitors in advance of
implementing lay-offs until after a claim is
made by an employee. The law relating to
redundancies and lay-offs is complex. Many
employers are being advised in respect of
redundancies and lay-offs by individuals who
are not qualified legal advisors but purport to
provide quasi-legal services under the guise of
HR consultancy services.
The Law Society recently ran a series
of advertisements on the radio concerning
redundancies. This particular problem – which
Employment law
is arising more and more for employers, and
potential claims for employees – shows the
importance of the Law Society message that,
where redundancies or lay-offs are being
considered, legal advice is imperative. G
Look it up
Cases:
• Bond v CAV Ltd and Neads v CAV Limited
[1983] IRLR 360
• Devonald v Rosser [1906] 2KB 728
• Hanley v Pearse & Partners [1915] 1 KB
698
• John Lawe v Irish Country Meats (Pig
Meats) Limited [1998] ELR 266
• R v Stoke-Upon-Trent Inhabitants [1843]
5 QB 303
• Riehn v Royale PW 21/205
• Shahid Sultan v Nasem [2001] ELR 302
• Tirmova v Vitra Ireland Limited PW
72/206
Legislation:
• Payment of Wages Act 1991
• Redundancy Payments Act 1967
35
36
Defamation
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
defame
GAMe
Fast facts
>>
> The highest award of damages for libel
in the history of the state was made in
Kinsella v Kenmare in November 2010
> It is also believed to be the biggest libel
payout in European history
> Under the new defamation regime, it
is expected that new requirements will
make it less likely that a jury will make
excessive awards
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Defamation
The largest libel award in Irish – and perhaps European – history was made last November in the prominent case of Kinsella v Kenmare. Emma Keane says that it’s regrettable that the assessment of damages was not
removed from the responsibility of the jury by the Defamation Act 2009
T
libel payout in European history.
he Defamation Act 2009 introduces a
Mr Kinsella sued his former employer, Kenmare
number of changes to Irish defamation
Resources, claiming he was defamed by a press release
law. One such change that is particularly
it sent out. The release stated that the board of the
relevant to a recent decision, Kinsella
company was to seek Mr Kinsella’s resignation as
v Kenmare Resources, is provided for in
chairman of the company’s audit committee arising out of
section 31 of the act, which deals with
damages. The 2009 act came into force on 1 January 2010. ‘an incident’ that occurred in 2007 at the company’s mine
in Mozambique. On foot of the incident, a complaint
It applies only to defamatory statements made after
1 January 2010. The offending press release in Kinsella was was made by the company secretary, Deirdre Corcoran,
against Mr Kinsella. The company chairman requested
issued in 2007, so the case was heard using the old rules.
that the company solicitors conduct an investigation
Irish juries were previously given some basic guidance
and prepare a report on the incident. The report was
in assessing damages. For example, they were told that
presented to the chairman, and he then
an award of damages should represent
sought and received a written apology
fair and reasonable compensation for the
from Mr Kinsella to
injury suffered by the plaintiff. However,
“After just
Ms Corcoran.
it was not allowable for actual figures to
Mr Kinsella had appeared naked at
be mentioned to juries.
three hours of
the room of Ms Corcoran. She had
Under section 31(1) of the 2009 act,
deliberations, the
complained about this. Mr Kinsella
“the parties in a defamation action may
claimed to have been sleepwalking. The
make submissions to the court in relation
jury awarded Mr
independent investigation had found that
to the matter of damages”. (Section
Kinsella €9 million
there was no conscious attempt by Mr
31(8) provides that “in this section
Kinsella to enter Ms Corcoran’s room and
‘court’ means, in relation to a defamation
in compensatory
no improper motive in opening her door.
action brought in the High Court, the
damages and
The jury was asked whether the press
jury, if the High Court is sitting with a
release stated or inferred that Mr Kinsella
jury”.) Section 31(2) provides that “in a
€1 million in
had made inappropriate sexual advances
defamation action brought in the High
aggravated
to Deirdre Corcoran. The jury answered
Court, the judge shall give directions
damages”
this question affirmatively. After just three
to the jury in relation to the matter
hours of deliberations, the jury awarded
of damages”. Section 31(3) states: “In
Mr Kinsella €9 million in compensatory
making an award of general damages
damages and €1 million in aggravated damages. Kenmare
in a defamation action, regard shall be had to all of the
said it was shocked at the verdict and would “immediately
circumstances of the case.”
and vigorously” appeal to the Supreme Court in pursuit of
Section 31(4) provides a list of 11 criteria to which the
a retrial.
court is to have regard. These criteria include the gravity
of any allegation, the means of publication, the extent
Falling short
to which the statement was circulated, the offering of
The previous highest libel award in the history of the state
an apology, the making of an offer to make amends, the
was that awarded to Monica Leech. Ms Leech, a public
importance to the plaintiff of his reputation in the eyes
relations consultant, was awarded €1.87 million against
of the recipients of the statement, acquiescence by the
Independent Newspapers over false suggestions that she
plaintiff in the publication of the statement, and evidence
won contracts because she was having an extra-marital
given concerning the reputation of the plaintiff.
affair with Martin Cullen, the then environment minister.
The danger of juries deciding awards of damages in
New requirement
defamation cases is further illustrated in the case of Denis
It remains to be seen how the new procedure will operate
O’Brien v Mirror Group Newspapers Limited. An award of
in practice. It is expected that the new requirement that
€250,000 was made to Mr O’Brien against the newspaper
the judge shall give directions to the jury in relation to
for alleging that Mr O’Brien had paid £30,000 to former
the matter of damages will make it less likely that a jury
minister Ray Burke. The level of the award was appealed
will make such an excessive award as was made in the case
to the Supreme Court, which found it disproportionately
of Kinsella v Kenmare. The highest award in the history
high and referred the case back to the High Court on the
of the state was made to Mr Kinsella on Wednesday 17
issue of damages only. However, at the retrial, a new jury
November 2010. It is in fact believed to be the biggest
Emma Keane is
a barrister and
practises mainly
in Dublin
37
Diploma Programme
2011
SpRIng Into 2011 AnD gEt A nEw quALIFICAtIon
Diploma in Insolvency & Corporate Restructuring (webcast)Saturday2April2011
Diploma in Civil Litigation (webcast) Monday4April2011
Diploma in Employment Law
(webcast) Tuesday5April2011
Certificate in Investment Funds Law and
Compliance
(webcast) Wednesday6April2011
• Certificate in District Court Litigation
& Advocacy
(Blended-learning) Saturday9April
2011
•
•
•
•
How to AppLy:
Topayonlineandforfurtherinformationon
theSpringprogrammevisit
www.lawsociety.ie/diplomas
tel:016724802
E-mail: diplomateam@lawsociety.ie
website:www.lawsociety.ie/diplomas
*Ourcoursesareprimarilyaimedatthesolicitors’
profession,however,certaincoursesareopento
non-solicitors.
Diploma spring 2011 ad Gazette (new dimensions).indd 1
COURTS AND COURT OFFICERS ACTS 1995 – 2002
JUDICIAL APPOINTMENTS ADVISORY BOARD
Appointment of Ordinary Judge of:
The High Court
Appointment of Ordinary Judge of:
The Circuit Court
Notice is hereby given that applications are invited from practising
barristers and solicitors who are eligible for appointment to the
Office of Ordinary Judge of the High Court and to the Office of
Ordinary Judge of the Circuit Court.
Those eligible for appointment and who wish to be considered
should apply in writing to the Secretary, Judicial Appointments
Advisory Board, Phoenix House, 15/24 Phoenix Street North,
Smithfield, Dublin 7, for a copy of the relevant application form.
The closing date for receipt of completed application forms for
the Circuit Court is 5pm on Friday, 18th February 2011.
The closing date for receipt of completed application forms for
the High Court is 5pm on Friday, 4th March 2011.
Canvassing is prohibited.
Dated the 27th January 2011
It should be noted that fully completed application forms received
by this office may be considered for future vacancies that may arise
in the High Court and in the Circuit Court during 2011.
It should also be noted that The Standards in Public Office Act,
2001, as amended, prohibits the Board from recommending a
person for judicial office unless the person has furnished to the
Board a relevant tax clearance certificate (TC4) that was issued
to the person not more than 18 months before the date of a
recommendation.
Applicants may, at the discretion of the Board, be required to attend
for interview.
Brendan Ryan BL
Secretary
Judicial Appointments Advisory Board
17/01/2011 12:2
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Defamation
awarded Mr O’Brien €750,000. The case was
subsequently settled.
In the case of De Rossa v Independent
Newspapers, Denham J, in her dissenting
opinion, argued that the common law
position of leaving damages solely to the jury’s
discretion was incompatible with article 10 of
the European Convention on Human Rights. As
mentioned above, under the 2009 act, juries in
Irish defamation cases are now given guidelines
on damages in relation to defamatory
statements published after 1 January 2009.
Mohan and Murphy state that it seems that
this change in law in the 2009 act has provided
“a belated statutory blessing” to the dissenting
judgment of Denham J in De Rossa. However,
the 2009 act has been criticised for falling
short of its expected reform in the context of
damages.
Judge and jury
The role of juries in defamation proceedings
has long been the subject of debate in Ireland.
The press has for a long time argued for
reform of libel laws and, in particular, for the
abolition of juries in defamation proceedings.
In 1991, the Law Reform Commission (LRC)
published a detailed consultation paper
and a report on the civil law of defamation.
The 2009 act reflects some of the proposals
contained in the report. It is unfortunate,
however, that the act does not implement the
following two LRC proposals:
“1)In the High Court, the parties to
defamation actions should continue to
have the right to have the issues of fact,
other than the assessment of damages,
determined by a jury,
2) The damages in such actions should be
assessed by the judge, but the jury should be
Look it up
Cases:
• De Rossa v Independent Newspapers
[1999] 4 IR 432
• Denis O’Brien v Mirror Group Newspapers
Limited [2001] 1 IR 1
• Kinsella v Kenmare Resources Plc and
Another (High Court, 17 November 2010)
• Leech v Independent Newspapers
(Ireland) Ltd [2007] IEHC 223
Literature:
• Law Reform Commission (1991),
Report on the Civil Law of Defamation,
www.lawreform.ie/_fileupload/Reports/
rDefamation.htm
• Hugh I Mohan and Mark William Murphy,
“Defamation Reform and the 2009 Act:
Part II”, Bar Review, June 2010
‘Look here, you – why I oughta...’
entitled to include in their verdict a finding
that the plaintiff is entitled to nominal
damages only.”
The LRC considered that, while juries should
continue to decide the issue as to whether the
words complained of were defamatory, and
should also determine the level of damages,
the actual amount should be determined by a
judge. Although the LRC could not be certain
that transferring the function of deciding
damages in defamation actions to judges would
remove the danger of seriously excessive
awards, the LRC expressed its opinion that
“judges, by their training and experience, are in
a better position to arrive at a sum which bears
an appropriate proportion to the seriousness of
the libel or slander”.
The LRC therefore proposed that
legislation should provide that the assessment
of damages should be a matter for the judge
alone. The LRC added one qualification to
this: that the jury should be entitled to include
in their verdict a finding that the plaintiff
is entitled to nominal damages only. This
would be the situation in a case where the jury
concluded that the plaintiff had indeed been
defamed, but that he had no reputation worthy
of vindication.
Specific guidelines
These LRC recommendations are to be
praised and ought to have been implemented.
Other than in relation to an award of nominal
damages, it is much more suitable for a
judge than for a jury to decide an award of
damages. It would significantly reduce, if
not completely eradicate, the possibility of
grossly disproportionate awards being made in
defamation proceedings.
In relation to an appeal against damages,
prior to the act, a defendant could appeal an
award of damages by a jury in the High Court
only if it could be shown that the award was
disproportionately high. The Supreme Court
could then remit the matter back to the High
Court for re-hearing. Section 13(1) of the 2009
act provides that, upon appeal, the Supreme
Court can substitute an award of damages
granted by a jury in the High Court with such
amount “as it considers appropriate”. Although
this is a helpful development in the law, it
unfortunately does not remove the problems
with the delay involved in an appeal and the
resultant pressure on the defendant to settle.
Although some of the reforms brought
about by the 2009 act are to be welcomed, it
is disappointing that the reforms do not go
further. The requirement that a judge must
provide a jury with specific guidelines in order
to aid them in assessment of damages is a very
helpful development in the law of defamation.
Also of assistance is the ability of the Supreme
Court, upon appeal, to substitute an award of
damages granted by a jury in the High Court
with such amount as it considers appropriate.
It is a great pity, however, that the
assessment of damages was not removed from
the responsibility of the jury, as proposed
in the LRC report. Such removal would
strengthen the protection against the danger
of the making of very excessive awards in
damages such as that made in Kinsella v
Kenmare. G
39
40
People and places
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Pic: Jason
Minister for Justice is
parchment ceremony
guest of honour
Clarke Photography
Pic: Jason Clarke Photography
At the parchment ceremony on 9 December 2010 were (l to r): President
of the High Court Mr Justice Nicholas Kearns, then Minister for Justice
Dermot Ahern, President of the Law Society John Costello, and director
general Ken Murphy
Newly qualified solicitors
Karen Quigley, Sarah Kelly and Aoife O’Malley are congratulated
by then Minister for Justice Dermot Ahern following the presentation of
their parchments on 9 December 2010
Pic: lensmen
Following the parchment ceremony on 9 December, the Society hosted a dinner to honour the outgoing Minister for Justice. It was attended by a number
of fellow Dundalk-based solicitors chosen by him. (Front, l to r): Dermot Lavery, John Woods, then Minister for Justice Dermot Ahern, Law Society
President John Costello and president of the Louth Solicitors’ Bar Association Tim Ahern. (Back, l to r): Donal O’Hagan, Fergus Mullen, Brian Berrills,
deputy director general Mary Keane, James Murphy and director general Ken Murphy
Kilkenny Bar Association
At a recent meeting of Kilkenny Bar Association, held in the Pembroke Hotel, Kilkenny, were (front, l to r): Len Roche, Eugene O’Sullivan, Martin Crotty, Gerard
Doherty (then Law Society president), Owen O’Mahony (Kilkenny Bar Association president), Ken Murphy (director general), John Costello (then senior vicepresident) and Matthew Kearney. (Back, l to r): Gerry Meaney, Kieran Boland, Michael Lanigan, Hilary Roche, Tom Walsh, Tim Kiely, Sonya Lanigan (Kilkenny
Bar Association secretary), Tristan Lynas, Martin O’Carroll and Celine Tierney
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
People and places
41
Mayo solicitors’ annual dinner beats the snow and ice!
All pics: John O’Grady, Ballina, Co Mayo
At the MSBA annual dinner on 5 December were (back, l to r): Kevin O’Higgins (Law Society junior vice-president),
Yvonne Chapman, Michael Quinlan, Judge Dan O’Keeffe, Fidelma Gilhooly, Stuart Gilhooly (DSBA president), Patricia
Ball O’Keeffe, Dr Jimmy Devins, Jane Houlihan and John Costello (Law Society president). (Front, l to r): Dermot
Hewson, retired Judge Bernard Brennan, Ken Murphy (director general), Judge Mary Devins, Evan O’Dwyer (MSBA
president), Aisling O’Dwyer, leader of Fine Gael Enda Kenny and James Cahill (Law Society Council member)
Catherine Killalea (solicitor,
Legal Aid Centre, Castlebar) and
Fidelma Gilhooly
The MSBA annual dinner welcomed visitors from far and wide, including (back, l to r): Leader of Fine Gael Enda
Kenny, Law Society president John Costello, DSBA president Stuart Gilhooly, John Guerin and Donald Eakin. Front
row: Patricia Eakin, Evan O’Dwyer (MSBA president), Susan Brennan (Belfast Solicitors’ Association president) and
Fintan Murphy (county registrar, Mayo)
The Mayo Solicitors’ Bar
Association (MSBA) held its very
popular annual Christmas dinner
dance in Lisloughrey Lodge,
Cong, on 5 December. The
guests of honour were Fine Gael
leader Enda Kenny and his wife
Fionnuala. Also present were
special guests Judge Mary Devins,
Judge Bernard Brennan (retired),
Law Society President John
Costello, Kevin O’Higgins (Law
Society junior vice-president),
Stuart Gilhooly (DSBA president)
and his wife Fidelma, Ken
Murphy (director general) and his
wife Yvonne Chapman, Fintan
Murphy (county registrar, Mayo),
Susan Brennan of the Belfast
Solicitors’ Association, and Evan
O’Dwyer (MSBA president), as
well as other guests.
42
People and places
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Members of the SYS committee who organised the conference
included (l to r): Stephen Fuller, Claire Walsh, Daniel Mueller, Claire
McLoughlin, Micheál Grace (chairman), Joanne Joyce, Michael
Keaveney (treasurer), Jane McCluskey (secretary) and Paul Kennedy
Above: At the SYS
conference were (l to r):
Claire McLoughlin (SYS),
Eileen Moloney (from
sponsors, Brightwater),
Catriona O’Dwyer
(Brightwater) and Micheál
Grace (SYS chairman)
Right: At the Ardilaun
Hotel were (l to r): Lorna
Osbourne, Noelle White
and Edel Bourke
Meeting up in Galway were (l to r): Ciara McLoughlin, Darren Nangle, Elaine
Caulfield, Daniel Mueller (all Eversheds) and Claire Molloy (A&L Goodbody)
Enjoying the ‘City of the Tribes’ were (l to r): Elaine Caulfield (Eversheds),
Iain McDonald (Philip Lee), Stephen D’Ardis and Ciara McLoughlin (both
Eversheds)
Young solicitors go tribal
Galway was the venue for the
recent conference of the Society
of Young Solicitors (SYS). In
all, over 200 delegates attended.
Useful contacts were established
with counterparts from the
Northern Ireland Young
Solicitors’ Association.
Conference speakers included
Padraic Brennan (managing
partner, RDJ Glynn Solicitors),
John Kennedy BL, Dermot
Dempsey (DFG Legal Costs
Accountants), Tom O’Malley
BL (senior lecturer in law, NUI
Galway) and Caitriona O’Dwyer
(Brightwater Recruitment). Law
Society President John
Costello was guest
speaker at the gala
dinner on Saturday
night.
SYS is indebted to
its sponsors, Bank of
Ireland, Brightwater and
RDJ Glynn Solicitors.
SYS chairman Micheál
Grace thanks the SYS
committee for its role in
organising the event.
Attending the conference in the Ardilaun Hotel
were (l to r) Lucy O’Reilly, Elizabeth Cass, Catriona
Cummins and Emer O’Hora
Showing their
support for SYS
were (l to r):
Audrey-Maura
Ferguson, Ruth
Jordan, Deirdre
Munnelly and
Janet Keane
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
People and places
Conferring ceremonies of the Law Society Diploma Programme
Diploma in Trust and Estate Planning
Pictured with lecturers and conferees at the conferring ceremony for the Diploma in Trust and Estate Planning on 18 November were Padraic Courtney (law
school), Eddie O’Regan (STEP), Nick Jacob (deputy chairman, STEP Worldwide), Mary Condell (MC) and Freda Grealy (diploma manager)
Diploma in Finance Law
At the conferring ceremony for the Diploma in Finance Law
on 18 November were Peter Oakes (assistant director general – enforcement,
Central Bank of Ireland), Mary Condell (MC) and Freda Grealy
(diploma manager), with diploma conferees
Diploma in Civil Litigation
Lecturers and conferees at the conferring ceremony for the Diploma in
Civil Litigation on 24 November were John O’Connor (vice-chairman,
Education Committee), Ms Justice Fidelma Macken and Freda Grealy
(diploma manager)
Diploma in Commercial Litigation
At the Diploma in Commercial Litigation conferring ceremony on
24 November were John O’Connor (vice-chairman, Education
Committee), Ms Justice Fidelma Macken and Freda
Grealy (diploma manager)
Pre-ceremony diploma reception
Pictured at Blackhall Place on 30 November were
(back, l to r): Geoffrey Shannon (deputy director of education), Louise
Stirling (Alliance Française), Rory O’Boyle (diploma coordinator), Freda Grealy
(diploma manager) and Claire Bourgeois (director, Alliance Française). (Front, l
to r): Alan Dukes (Comité de l’Alliance Française), Dara Calleary TD (Minister for
Labour Affairs), John Costello (Law Society president) and Ms Justice Mary Finlay
Geoghegan
43
New TiTle
Disciplinary Procedures in the Statutory Professions
By Simon Mills, JP McDowell, Aideen Ryan and Eimear Burke
New, fully up-to date
and comprehensive
This new book is written by experienced
practitioners in the field of professional regulatory
law. It deals with both the principles and practice
of statutory professional conduct proceedings.
As well as dealing with the established regulated
professions such as doctors, solicitors, nurses, vets
and dentists, the book will also consider those
professions which have recently (or are about
to) come under statutory regulation, including:
architects; surveyors; teachers; pharmacists; health
and social care professionals and accountants.
ISBN: 978 184766 6697
Format: Hardback
Price: €160.00
Pub Date: April 11
Contents
Part 1 - Principles and Practice:
the nature and purpose of statutory
professional regulation; Grounds
for disciplinary action; Making
complaints; Investigation of
complaints; Pre-hearing issues;
the disciplinary hearing; Decisions
and sanctions; Appeal and review
of decisions
ABout tHe AutHors
Simon Mills is a barrister and doctor,
who practises in all areas of medical
law, including professional regulatory
matters. He is the author of Clinical
Practice and the Law (2nd ed).
Part 2 - Professional regulatory
provisions: Medical Practitioners
Act 2007; solicitors Acts; nurses and
Midwives Bill 2010; Dentists Act
1985; Pharmacy Act 2007; Health and
social Care Professionals Act 2005
(Physiotherapists, social Workers et al);
Veterinary Practice Act 2005; teaching
Council Act 2001; Building Control
Act 2007 (Architects and surveyors);
Companies (Auditing and Accounting)
Act 2003; opticians Acts.
JP McDowell, Aideen Ryan and
Eimear Burke are solicitors in the
firm McDowell Purcell solicitors which
has a dedicated professional regulatory
law unit. they specialise, in particular,
in advising professional regulatory
bodies and registrants in relation to
professional conduct inquiries.
To place your order simply:
Visit: www.bloomsburyprofessional.com Telephone: (01) 637 3920
Fax to: (01) 662 0365 Email: jennifer.lynch@bloomsburyprofessional.com
Post to: Jennifer Lynch, Bloomsbury Professional, The Fitzwilliam Business Centre,
26 Upper Pembroke Street, Dublin 2. Document Exchange: DX 109035 Fitzwilliam
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Tax Book 2010
Alan Moore. Tax World (2010),
www.taxworld.ie. ISBN: 978-1902065-40-3. Price: €150.
The volume and complexity of
Irish tax legislation is increasing
on an annual basis. In light of
the constant amendment and
introduction of new provisions
into tax legislation, the interaction
between statutory provisions and of
the intention behind them becomes
essential for anyone seeking to
advise their clients on tax matters.
Tax Book 2010 is an updated
comprehensive guide that seeks
to give guidance as to the ‘what
and why’ of the main provisions in
the tax code. The book comments
on every section and subsection
of the Taxes Consolidation Act
1997, the Value Added Tax Act
1972, the Capital Acquisitions
Consolidation Act 2003, and the
Stamp Duties Consolidation Act
1999. The approach of taking every
section and subsection and, where
possible, commenting on relevant
guidance or giving examples of
how the legislation operates, is
something that anyone who has
cause to look at tax legislation is
likely to find very useful.
The Finance Act 2010 saw the
introduction of important changes,
both to direct and indirect taxes.
Book reviews
The End of
Lawyers?
Richard Susskind. Oxford University
Press (revised 2010), http://ukcatalogue.
oup.com. ISBN: 978-0-1995-936-13.
Price: Stg£12.99.
These changes, such as the
NAMA provisions, VAT place-ofsupply rules and the mandatory
disclosure regime, among others,
are covered for the first time in
this publication. Unfortunately, as
is the case with any publication of
this nature, these rules continue
to evolve, and certain issues will
most likely require substantial
updating in the Tax Book 2011
publication, if and when published.
Also, since publication of the book,
the Value Added Tax Act 1972
has been repealed and replaced.
One of the main difficulties for
many practitioners is to try to find
something that is affordable and
useful. This publication is perhaps
the best tax publication that meets
both of these tests across such a
wide body of legislation.
Gavin McGuire is a partner in
Eversheds O’Donnell Sweeney.
In The End of Lawyers?, Richard
Susskind predicts significant
pressures on the legal world as
we know it today. In this, the
sequel to The Future of Law
(1996), Susskind assesses the legal
marketplace and identifies the
issues facing law firms, big and
small. He explores the cracks in
the current system and the forces
that will eventually cause them to
shatter.
Most importantly, the author
provides a panoramic view of a
profession undergoing a massive
transformation. The book focuses
on how the internet, technology,
collaboration, globalisation and
other factors are reshaping the
fundamental rules by which legal
services are bought and sold – and
observes how these changes will
affect the everyday workings of
lawyers.
He identifies a spectrum of
legal-service categories, moving
from the ‘left’: bespoke, one-off,
tailored services – to the ‘right’:
standardised systems, precedents
and packaged ones. He argues
that, while many lawyers claim
their work is concentrated more
on the former model, a move to
latter is underway and will impact
greatly on business models.
Susskind outlines how legal
tasks can be decomposed into
component parts and delegated.
This, of course, includes the
imminent arrival of outsourcing,
but also ‘in-sourcing,’ ‘delawyering’, offshoring, subcontracting and leasing. Systems
ensure that these services come
together seamlessly for the client.
He predicts increased effectiveness
and efficiency as the legal world
embraces new technologies.
The book paints a scary picture.
The threat for traditional-style
lawyers is very real. This book
should be compulsory reading
for all, but especially for those
beginning a journey in the field.
Diarmuid Byrne is a trainee solicitor
at Arthur Cox.
District Court Practice and Procedure in
Criminal Proceedings (3rd edition)
James V Woods. James V Woods BL. 12 Elsinore, Castletroy, Co Limerick. jvwoods@eircom.net. Price: €200 (incl p&p).
The third edition of District
Court Practice and Procedure in
Criminal Proceedings provides
an authoritative text that will be
especially welcomed by litigation
practitioners.
The author begins with an
outline of the framework of the
District Court, before moving on
to the process of the preparation
of the prosecution’s case and the
hearing of proceedings. A detailed
discussion on arrest and detention
for various offences is provided.
A chapter is devoted to summary
sanctions of a non-criminal
nature, detailing various offences
and penalties in a number of
fields, including the topical issue
of antisocial behaviour orders,
as provided under the Criminal
Justice Act 2006.
There is a comprehensive
treatment of appeals from the
District Court and a chapter
is also devoted to the subject
of judicial review by the High
Court of a decision made by a
District Court judge. The author
guides the practitioner through
procedures in the conduct
of proceedings, tendering of
evidence and satisfying the burden
of proof. A commentary is also
provided on the Fines Bill 2009.
The inclusion of an extensive
chapter dedicated to the
Children Acts 2001-2007, which
deals with criminal and antisocial
behaviour proceedings involving
children, is a welcome addition
to a text of this nature.
In each chapter, the author
is meticulous in examining the
issues with recourse to legislation
and with reference to reported
and unreported cases. The
clear and concise manner in
which it is written makes the
book an excellent reference
tool for District Court judges,
practitioners and members of
An Garda Síochána. It is an
invaluable and necessary guide.
Joyce A Good Hammond is a partner
at Hammond Good in Mallow, Co
Cork. G
45
46
Reading room
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Smart people use smart libraries
When was the last time you visited the Society’s
library or its website? The head of library and
information services, Mary Gaynor, begins a new
series focusing on the superb traditional and
electronic services available to practitioners
Mary Gaynor
is head of
library and
information
services at the
Law Society of
Ireland
T
he Library Association of
Ireland’s annual national
event, ‘Library Ireland
Week’, will take place from 7-13
March 2011. The theme for this
year’s event is ‘Smart people use
smart libraries’. During this week,
there will be library events and
media coverage throughout the
country, encouraging people to
visit their public and institutional
libraries and to learn more about
how technological developments
have made access to library
collections easier and more
efficient – from your home and
office.
The Society’s library
The Law Society Library has
a collection of over 10,000
monographs, including textbooks,
conference papers, and so on, and
subscribes to a large number of
journals, law reports series and key
electronic databases. The online
library catalogue now contains
almost 30,000 records of books,
legislation and judgments.
At the heart of the library service
is the textbook collection, from
which members and trainees may
borrow. In recessionary times, the
services of a lending library are a
valuable resource for practitioners
– loans from the Society’s library
have increased by 25% over the last
two years. The online catalogue is
available via the members’ area on
www.lawsociety.ie, so searching for
material can be done easily from
wherever you are located.
Obtaining material –
the smart way
Book loans can be ordered online
via the catalogue by clicking on
the ‘request loan’ button to the left
of the book record. Items can also
be renewed online. Both of these
functions require a library PIN. If
you don’t have your library PIN,
please contact the library. There is
no charge for borrowing books.
The library also provides a
research/document delivery
service if you are interested in
sourcing materials on specific
topics – for instance, if you need
to find out if there is anything
written on NAMA or the Land
and Conveyancing Law Reform Act
2009, you can run a subject or title
search that will yield catalogue
records of relevant books, lectures,
legislation and judgments,
with pdf links to the full text of
materials, where available.
Non-book material, copies
of case law, articles, precedents,
and so on, can be ordered by
contacting the library with
specific requests. The preferred
method of document delivery is
by email, with pdf attachment.
Requests for material that the
library holds in-house are dealt
with speedily. In addition, the
library has arrangements in
place with a number of back-up
libraries to supply other materials,
usually within 24 hours. There is
a nominal charge for document
delivery. For charges effective
from 1 January 2011, see www.
lawsociety.ie.
If you haven’t used the Law
Society library’s services in recent
times, you might like to visit the
library during the National Library
Week, or log on to the online
catalogue and request a loan.
If you are a regular library
user and have any comments or
suggestions about how our services
might be improved, please email
m.gaynor@lawsociety.ie. G
Just published
What’s new – and how to use it
During the last few months
of 2010, Irish law publishers
published a number of new editions
of key law textbooks, as well as new
first editions of works on important
current topics. Keeping up to date
on the books and other materials
that are available is a very useful
exercise in helping to deliver an
excellent service to clients.
When was the last time you
logged on to the Law Society’s
website (members’ area) to view the
online library catalogue? The ‘new
books’ section on the catalogue
homepage contains a list of the
last three months’ publications.
Currently, the list contains the
following new editions of longawaited key textbooks:
• Casey, P – Psychiatry and the
Law (2nd ed, 2010; Blackhall
Publishing)
• Cassidy, C – Licensing Acts
(3rd ed, 2010; Clarus Press)
• Clark, R and Smyth, S –
Intellectual property law
in Ireland (3rd ed, 2010;
Bloomsbury Professional)
• Forde, M and Byrne, A –
Industrial Relations Law
(2nd ed, 2010; Round Hall)
• Gallagher, B – Powers of Attorney
(3rd ed, 2010; Round Hall)
• Hogan & Morgan – Administrative
Law in Ireland (4th ed, 2010;
Round Hall)
• Lyall, Andrew (with Albert Power)
– Land Law in Ireland (3rd ed,
2010; Round Hall)
• O’Halloran, K – Adoption Law
and Practice (2nd ed, 2010;
Round Hall)
• Sanfey, M and Holohan, B –
Bankruptcy Law and Practice,
(2nd ed, 2010; Round Hall)
• Wylie, JCW – Land Law, (4th ed,
2010; Bloomsbury Professional)
• Shannon, G – Child Law, (2nd
ed, 2010; Round Hall)
• Woods, J – District Court Practice
and Procedure in Criminal
Proceedings, (3rd ed, 2010;
Woods).
New first editions of books and
seminar papers recently acquired
by the library include the following
Irish titles, all of which are available
to borrow:
• Daly, B and Doherty, M –
Principles of Irish Employment
Law (2010; Clarus Press)
• Hutchinson, B – Arbitration and
ADR in Construction Disputes
(2010; Round Hall)
• Kerr, A (ed) – The Industrial
Relations Act 1990 – 20 Years
On (2010; Round Hall)
• Kilcommins, S and Kilkelly,
U – Regulatory Crime in Ireland
(2010; First Law/Lonsdale)
• Maddox, N – Housing Authority
Law (2010; Round Hall)
• McDonnell, M – Misuse of Drugs:
Criminal Offences and Penalties
(2010; Bloomsbury Professional)
• Round Hall seminar papers on
risk management (September
2010), judicial review (November
2010) and planning and
environmental law (November
2010)
• Ryan, D – Mental Health Acts
2001-2009: Case Law and
Commentary (2010; Blackhall
Publishing)
• TCD School of Law seminar
papers on Probate and
Succession – Recent
Developments (May 2010);
Schools and the Law – Coping
with New Challenges (May
2010); Medical Negligence –
Developments Impacting on
Practice (May 2010).
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Council report
briefing
Law Society Council meeting 10 December 2010
Motion: training officer
regulations
“That this Council approves the Solicitors Acts 1954 to 2008 (Apprenticeship and Education) (Training
Officer) Regulations 2010.”
Proposed: Michelle Ní Longáin
Seconded: John O’Connor
The Council approved the proposed regulations, which were designed to reduce the administrative burden on training solicitors,
particularly in large and mediumsized firms who had numbers of
trainee solicitors, by permitting
the delegation of certain specified
functions to a designated training
officer within the firm.
Motion: prescribing fees for
certain applications for
information
“That this Council approves regulations (1) to amend the sixth schedule
to the Solicitors Act 1954, as provided for by section 66 of the Solicitors (Amendment) Act 1994, for
the purpose of including additional
applications for which fees may be
prescribed, and (2) to prescribe fees for
certain of the applications included in
the sixth schedule.”
Proposed: Michael Quinlan
Seconded: Martin Lawlor
The Council approved the proposed regulations, which enabled the Society to apply certain
charges for specified categories of
information requested from the
Society. In particular, the Council
noted that significant volumes of
information were regularly being
sought by financial institutions
within very short time frames.
Professional indemnity insurance
Eamon Harrington briefed the
Council with the latest information on renewals for 2011. He
noted that there were currently 55
applications to join the Assigned
Risks Pool, although this number
was expected to reduce as solicitors continued to negotiate with
insurers in relation to quotations.
In this context, he noted that the
Council should take great credit
for its determination that the Assigned Risks Pool would be reinstated, albeit on amended terms.
He also noted that the insurance
market was still active, with a
number of insurers continuing to
provide quotations. In relation to
the PII Helpline, he reported that
606 enquiries had been received
to date, 50% of which related to
difficulties in obtaining quotations
and 50% of which related to more
routine enquiries.
The Council discussed the fact
that stress levels within the profession had been greatly increased in
circumstances where colleagues
feared that they might not be able
to obtain an insurance quotation.
This fear had been exacerbated by
the fact that RSA and Quinn had
both left the market, and Ireland
as a whole was experiencing the
‘perfect storm’ evidenced by the
IMF/EU bailout. The Council
confirmed its support for the proposal of the PII Task Force that
a professionally organised survey
would be conducted by the Society early in the New Year, backed
up by insurance expertise. In addition, all of the various options
for the provision of professional
indemnity insurance that had been
examined by the task force during
2010 would be re-examined for
2011 and future years, and PII remained as an item of the highest
priority for the Council for 2011.
Practising certificate fees
for 2011
On the recommendation of the
Finance Committee, the Council
approved the practising certificate
fees for 2011, on the basis that the
total fees would remain unchanged
from 2010, although the fee for
general Society activities would be
reduced by €40 and the amount of
the compensation fund contribution would be increased by a corresponding amount of €40.
Report of independent
adjudicator
The Council considered the report of the independent adjudicator, who had responsibility for
(a) ensuring that the Law Society handled complaints about its
members in an effective and efficient manner, (b) reviewing the
Law Society’s handling of claims
made on the compensation fund,
and (c) recommending any changes in the Law Society’s complaints
and claims procedures that were
necessary to maintain the highest
standards.
The Council noted that she had
acknowledged that referral timeframes from the Complaints and
Client Relations Committee to
the disciplinary tribunal had improved, and she had also noted the
appointment of an external firm of
solicitors on a pilot basis to deal
with referrals to the tribunal. She
had also focused on complaints
against solicitors who had multiple complaints and her view that
such complaints required rigorous
attention. The Council expressed
its gratitude for the valuable work
of the independent adjudicator
and for her annual report, which
was largely positive and supportive of the Society’s complaintshandling process.
Report of lay members of the
Complaints and Client Relations
Committee
The Council considered the report of the lay members of the
Complaints and Client Relations
Committee, which focused particularly on the increased activity of
the Complaints Section in relation
to complaints about breaches of
undertaking. The Council noted
that the committee was comprised
of a majority of lay members and
expressed its gratitude to the lay
members for their continued
commitment to a thorough and
transparent complaints-handling
system.
Society’s Law School in Cork
John O’Connor briefed the Council on the decreasing numbers of
students attending the Society’s
Law School in Cork, which had
reduced from a high of 106 in
2007, to 76 in 2008, 66 in 2009
and 44 in 2010. He noted that
there were both educational and
financial implications arising from
the reducing numbers, which
were a matter of concern to the
Education Committee, and he
confirmed that proposals would
be brought to the January Council
meeting for discussion. G
EXAMINER’S OFFICE OFFICE NOTICE 1/2011
On 12 January 2011, the Minister
for Justice and Law Reform signed
statutory instrument no 2 of 2011.
The SI amends the current Rules
of the Superior Courts by removing
the requirement to file Examiner’s
Office documentation in the Central
Office of the High Court, in addition
to the Examiner’s Office itself.
From 1 February 2011, all
affidavits, notices of motion, notices
to proceed, examiner’s certificates
and examiner’s orders should be
filed in the Examiner’s Office only.
There will be no requirement to file
these documents or copies of these
documents in the Central Office of
the High Court.
The introduction of these new
rules will eliminate the need to
attend in the Central Office of the
High Court in respect of matters
that lie within the remit of the
Examiner’s Office. Such matters
include court liquidations, mortgage
suits (well-charging proceedings),
administration suits and any other
matter remitted to the Examiner’s
Office by the court.
John Glennon, Examiner
24 January 2011
47
48
Law Society Gazette
Practice notes
briefing
www.gazette.ie
Jan/Feb 2011
Practice notes
Lodgment of title deeds with lenders
conveyancing Committee
Many practitioners will be aware
of the difficulties associated with
getting lenders to acknowledge
receipt of title deeds. A lender
may not acknowledge receipt or
may furnish a general letter of
acknowledgment, but not a signed
schedule confirming receipt of the
specific documents listed therein.
The onus is on the lender to
ensure that the specific documents
listed in the schedule are
furnished. However, difficulties
may arise subsequently if it is
discovered that a particular deed
or document is missing. In order
to avoid the implication that the
solicitor may be responsible for
this omission, it is recommended
that the following paragraphs
be inserted into correspondence
lodging title deeds with lenders:
“A duplicate schedule is attached
for you to sign and return to us in
order to acknowledge receipt of the
enclosed title documents.
In default of hearing from you
within ten working days, this firm
will take it that you have received
all the documents on the schedule
and that it is released from any
undertaking given in relation to this
transaction and in relation to the title
documents, and thereafter this firm
disclaims all responsibility for the title
documents.
Our file will be closed and placed
in storage and any query from you
arising in relation to this matter after
that date will incur a charge, details
of which will be provided to you at the
time of raising the query, and which
charge will be payable in advance of
replying to such query.”
A copy of the correspondence
and schedule should be retained
on file and may also be copied
to the client at the same time.
It is also recommended that the
title documents be delivered by
hand or some form of recorded
delivery.






Firms should not act
on both sides of property Witnessing
transactions where one party is vulnerable
wills where the
Guidance and Ethics Committee
solicitor is the
should not act for both parties
There has been concern for some I have no doubt whatsoever that


executor
to a property transaction where
time that some solicitors’ firms the duty upon a solicitor who is




one or both of the parties
is a
do not
recognise that a special acting

 on behalf of both parties


Probate, Administration
vulnerable person,

duty of care is owed to vulnerable in the circumstances which have
and Trusts Committee



clients. In order to ensure that arisen in this case is particularly 2)Practitioners should note

The Law Society Gazette in recent
that the characteristics of
the interests of a vulnerable onerous … Since the Law Society
times has covered the question
vulnerability are not exhaustive
client who is disposing of is apparently prepared to permit
of the merits of a solicitor acting
and include a person who, by
property are properly protected, this practice (notwithstanding the
as an executor in an estate (see
reason of age, infirmity, mental
that client should be represented potentially conflicting interests
Gazette, July 2008) and the
illness, mental incapacity or
by a different firm to the firm to which I have referred), I
question of who the client is in
physical disability, lacks the
think it would be helpful if the
representing the purchaser.
circumstances where a solicitor so
ability to make an informed
There has been negative Law Society would draw up and
acts (see Gazette, July 2010).
or
independent
decision
comment from the judiciary on publish strict guidelines to be
In the event that a solicitor does
regarding the acquisition or
this issue in many cases over applied by solicitors who chose
agree to act as an executor, then
disposal of property,
the past number of years. For to act on behalf of both vendor
in drafting the will it is important
instance, in the case of Sean and purchaser in transactions 3)A property transaction includes
that the solicitor includes a
a mortgage, lease, transfer,
Murray and another v James involving the transfer of property
charging clause enabling the
disclaimer, release, easement
O’Donnell and others in 2004, Mr and, indeed, perhaps in other
solicitor to charge in connection
and any other disposition
Justice Quirke stated as follows: transactions also. It would also
with the administration of the
Health
of property, otherwise than
be helpful if such guidelines
“I note with some uneasiness




Support
estate and, further, it is important
by
will
or
donatio
mortis
were
rigidly
enforced
by
the
Law
that solicitors are permitted
by
and Advice
that the solicitor (or any partners
causa, and also includes
the Law Society to act onfor
behalf Society.”

in the firm) should not witness
an enforceable agreement
The Council of the Law
of both the vendor and Lawyers
purchaser

the will. The matter is governed
(whether conditional or unin 
transactions of this kind. Society has now approved the
by section 82 of the Succession
Act
conditional)
to
make
any
of
the
following
guidelines:
Conflicting
interests
are
bound
to







1965. G
foregoing dispositions.
arise in such circumstances, and 1)A solicitor or firm of solicitors







 







Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Solicitors Disciplinary Tribunal
Reports of the outcomes of Solicitors Disciplinary Tribunal
inquiries are published by the Law Society of Ireland as provided
for in section 23 (as amended by section 17 of the Solicitors
(Amendment) Act 2002) of the Solicitors (Amendment) Act 1994
In the matter of Margaret
(otherwise Mairead) Casey, a
solicitor practising as Casey &
Company, Solicitors, at North
Main Street, Bandon, Co Cork,
and in the matter of the Solicitors Acts 1954-2008 [8372/
DT26/09]
Law Society of Ireland
(applicant)
Margaret Casey (respondent
solicitor)
On 29 September 2010, the Solicitors Disciplinary Tribunal found
the respondent solicitor guilty of
misconduct in her practice as a
solicitor in that she:
a)Up to the date of the swearing
of the Society’s affidavit (on 20
March 2009), failed to comply
with the direction of the Complaints and Client Relations
Committee given on 1 April
2008, arising from her failure to
reply to the Society’s correspondence, that she pay the sum of
€650 to the Society towards the
costs of its investigation,
b)Failed to reply to the Society’s
letters dated 10 March 2005,
30 March 2005, 10 June 2005,
16 June 2005, 30 March 2006,
8 June 2006, 14 July 2006,
10 January 2008, 11 February 2008, 19 February 2008,
3 March 2008, 12 March 2008,
3 April 2008, 16 April 2008,
24 April 2008 and 20 May 2008,
c)Failed to attend or arrange to
be represented at the meeting
of the Complaints and Client
Relations Committee on 25
June 2008, despite having been
notified by letter dated 17 June
2008 that she was required to
attend the said meeting,
d)Failed, in her capacity as principal of the firm of Casey &
Co, to ensure full compliance
in a timely manner or at all, up
to the date of the swearing of
the Society’s affidavit, with an
undertaking given to another
firm of solicitors by the firm of
Casey & Co dated 25 July 1998
and, in particular, up to in or
about 25 February 2009, failed
to discharge all Land Registry
queries arising on the purchaser’s application for registration,
e)Repeatedly failed to respond
to correspondence from and
to communicate with the complainant regarding the matter
of the outstanding Land Registry queries.
The tribunal ordered that the respondent solicitor
a)Do stand censured,
b)Pay a sum of €7,500 to the
compensation fund,
c)Pay the whole of the costs of the
Law Society of Ireland as taxed
by a taxing master of the High
Court, in default of agreement.
In the matter of Greg O’Neill,
solicitor, of Greg O’Neill,
Solicitors, Suite 109, The
Capel Building, Mary’s Abbey,
Dublin 7, and in the matter of
the Solicitors Acts 1954-2008
[3365/DT/73/09]
Named client (applicant)
Greg O’Neill (respondent solicitor)
On 20 October 2010, the Solicitors Disciplinary Tribunal found
the respondent solicitor guilty of
misconduct in his practice as a
solicitor in that he failed to return
telephone calls (to his named client) for the past six months.
The tribunal ordered that the
respondent solicitor:
a)Do stand admonished and advised,
b)Pay a sum of €750 to the compensation fund.
In the matter of John BK Lindsay, a solicitor formerly practising as Lindsay & Company, Solicitors, at 47 Wellington Quay,
Dublin 2, and in the matter of
the Solicitors Acts 1954-2008
[3483/DT32/10]
Regulation
briefing
Notices: the high court
The High Court
Record no 2010 no 27 SA
In the matter of Mary Kennedy,
solicitor, practising as Barrington Solicitors at 97 Middle
Abbey Street, Dublin 1, and in the
matter of the Solicitors Acts 19542008
Law Society of Ireland (applicant)
Mary Kennedy (respondent)
Take note that, on Monday 12 April
2010, the High Court made an order prohibiting Mary Kennedy from
practising as a solicitor in contravention of the professional indemnity insurance regulations.
John Elliot,
Registrar of Solicitors and
Director of Regulation
Record no 2010/38 SA
In the matter of Katherine MA Ryan, solicitor, practising as Ryan
& Co at 42 Woodley Park, Dublin
Law Society of Ireland (applicant)
John BK Lindsay (respondent
solicitor)
On 24 November 2010, the Solicitors Disciplinary Tribunal found
the respondent solicitor guilty of
misconduct in his practice as a
solicitor in that he:
1)Failed to respond to multiple
letters from the Society,
2)Through his conduct, showed
a disregard for the responsibilities associated with practice as a
solicitor.
The tribunal made an order:
a)Admonishing and advising the
respondent solicitor,
b)Ordering the respondent solicitor to pay a sum of €1,000 to
the compensation fund,
14, and in the matter of the Solicitors Acts 1954-2008
Law Society of Ireland (applicant)
Katherine MA Ryan (respondent
solicitor)
Take note that, on Monday 17
May 2010, the High Court made
an order that Katherine MA Ryan
be suspended from practising as a
solicitor until further order of the
court.
John Elliot,
Registrar of Solicitors and
Director of Regulation
Record no 2010/70 SA
Take note that, on 31 August
2010, the High Court ordered that
the practising certificate of Ruairi
O’Ceallaigh be suspended.
John Elliot,
Registrar of Solicitors and
Director of Regulation
c)Ordering the respondent solicitor to pay the whole of the costs
of the Law Society, including
witness expenses, as taxed by a
taxing master of the High Court
in default of agreement.
And the tribunal took into account the following finding(s)
of misconduct on the part of the
respondent solicitor previously
made by them and not rescinded
by the High Court, namely:
• Order of the Solicitors Disciplinary Tribunal made on 30
June 2009 (record no 3483/
DT66/08),
• Order of the Solicitors Disciplinary Tribunal made on 30
June 2009 (record no 3483/
DT116/08). G
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49
50
Legislation update
briefing
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Legislation update 13 November – 31 December 2010
Details of all bills, acts and statutory instruments since 1997
are on the library catalogue – www.lawsociety.ie (members’ and
students’ area) – with updated information on the current stage a
bill has reached and the commencement date(s) of each act. All
recent bills and acts (full text in pdf) are on www.oireachtas.ie
and recent statutory instruments are on a link to electronic statutory instruments from www.irishstatutebook.ie.
ACTS PASSED
Appropriation Act 2010
Number: 35/2010
Content: Provides for the
appropriation to the proper
supply services and purposes
sums granted by the Central Fund
(Permanent Provisions) Act 1965
and makes provision in relation to
deferred surrender to the central
fund of certain undischarged
appropriations by reference to
the capital supply services and
purposes as provided for by the
Finance Act 2004, s91, and to
make provision in relation to the
financial resolutions passed by
Dáil Éireann on 7/12/2010.
Enacted: 17/12/2010
Commencement: 17/12/2010
Act 2000 to allow the Minister for
Finance to give certain directions
in relation to the National
Pensions Reserve Fund; provides
for related matters.
Enacted: 21/12/2010
Commencement: 21/12 2010
for all sections other than s59(2);
22/12/2010 for s59(2) (per SI
623/2010)
Chemicals (Amendment) Act
2010
Number: 32/2010
Content: Amends the Chemicals
Act 2008 and the Safety, Health
and Welfare at Work Act 2005 and
provides for related matters.
Enacted: 24/11/2010
Commencement: 10/12/2010
(per SI 591/2010)
Criminal Law (Insanity) Act
2010
Number: 40/2010
Content: Amends s4 (fitness
to be tried) of the Criminal Law
(Insanity) Act 2006. Inserts new
sections 13A, 13B and 13C in
the 2006 act, providing for the
making of conditional discharge
orders by the Mental Health
Review Board when reviewing
the detention of a patient under
s13 of the act. Further amends
the 2006 act, amends the Defence
Act 1954 and provides for related
matters
Enacted: 22/12/2010
Commencement: Commencement order(s) to be made per
s11(2) of the act
Credit Institutions Stabilisation
Act 2010
Number: 36/2010
Content: Provides, in the context
of the National Recovery Plan
2011-2014 and the European
Union/International Monetary
Fund Programme of Financial
Support for Ireland, in relation
to the stabilisation and the
preservation or restoration of the
financial position of certain credit
institutions; amends the Building
Societies Act 1989, the Central
Bank Act 1971 and the Credit
Institutions (Financial Support) Act
2008 for those purposes; amends
the National Pensions Reserve Fund
Financial Emergency Measures
in the Public Interest Act 2010
Number: 38/2010
Content: Provides for the
reduction of the amount of the
payment of pension or other
benefits (other than lump sums)
payable to or in respect of
certain persons who are or were
in the public service (including
former holders of certain offices,
members and former members
of the Houses of the Oireachtas
and former members of the
judiciary) under an occupational
pension scheme or pension
arrangement provided under
the Superannuation Acts 1834 to
1963 or any other enactment
or administrative measure to
like effect, or is required to be
made, approved of or consented
to (however expressed) by one
or more than one minister of
the government, to amend the
Financial Emergency Measures in
the Public Interest (No 2) Act 2009
and the National Minimum Wage
Act 2000, and provides for related
matters
Enacted: 22/12/2010
Commencement: 22/12/2010
Prevention of Corruption
(Amendment) Act 2010
Number: 33/2010
Content: Amends the Prevention
of Corruption Act 1906 and
the Prevention of Corruption
(Amendment)
Act
2001
to
strengthen the law on corruption
and to ensure that the state is
fully compliant with the terms
of the Convention on the Bribery
of Foreign Public Officials in
International Business Transactions
drawn up under the auspices of
the OECD on 21/11/1997 and
ratified by Ireland on 22/9/2003.
Inserts
new
‘whistleblower’
provisions in a new section 8A
of the Prevention of Corruption
(Amendment) Act 2001, providing
protection for persons (including
employees) reporting offences
under the Prevention of Corruption
Acts 1889 to 2008.
Enacted: 15/12/2010
Commencement: 15/12/2010
Public Health (Tobacco)
(Amendment) Act 2010
Number: 39/2010
Content: Provides for the
dissolution of the Office of
Tobacco Control, repeals part 2
of the Public Health (Tobacco) Act
2002, and provides for related
matters.
Enacted: 22/12/2010
Commencement: 1/1/2011 as
per s15(2) of the act
Social Welfare Act 2010
Number: 34/2010
Content:
Gives
legislative
effect to certain social welfare
measures announced in the budget
statement of 7/12/2010, which
are due to come into effect from
1/1/2011.
Enacted: 17/12/2010
Commencement: Commencement order(s) to be made for ss7,
8, 9 and 10 of the act (per s1(3) of
the act); 17/12/2010 for all other
sections
Social Welfare and Pensions Act
2010
Number: 37/2010
Content: Amends and extends
the Social Welfare Acts, confers
certain
functions
relating
to employment schemes and
related schemes and programmes
on the Minister for Social
Protection, amends the Labour
Services Act 1987, and provides
for the transfer of certain
assets, liabilities, property and
employees of An Foras Áiseanna
Saothair (FÁS); provides for the
continuance of certain schemes
provided by FÁS and provides for
related matters.
Enacted: 21/12/2010
Commencement: Commencement order(s) to be made for ss4,
11(1), 12,13 and 15-26 and parts
3 and 4; 21/12/2010 for all other
sections
Value Added Tax Consolidation
Act 2010
Number: 31/2010
Content: Consolidates enactments
relating to value added tax.
Enacted: 23/11/2010
Commencement: 1/11/2010 as
per s125 of the act
SELECTED STATUTORY
INSTRUMENTS
Civil Partnership and Certain
Rights and Obligations
of Cohabitants Act 2010
(Commencement) Order 2010
Number: SI 648/2010
Commencement: 1/1/2011 for
all sections other than s5; 23/
12/2010 for s5 of the act
Civil Partnership (Recognition of
Registered Foreign Relationships)
Order 2010
Law Society Gazette
www.gazette.ie
Number: SI 649/2010
Content:
Declares
certain
classes of registered foreign
relationship to be entitled to be
recognised in the state as a civil
partnership.
Commencement: 23/12/2010
District Court (Summonses)
Rules 2010
Number: SI 557/2010
Content: Substitutes order 15,
rule 6, of the District Court Rules
regarding the procedure for the
delivery of summonses.
Commencement: 25/11/2010
Land and Conveyancing Law
Reform Act 2009 (Section 100)
Regulations 2010
Number: SI 653/2010
Content: Prescribes the form of
notice to be used for the purposes
of s100(1) of the act.
Commencement: 30/12/2010
Land and Conveyancing Law
Reform Act 2009 (Section 103)
Regulations 2010
Number: SI 654/2010
Content: Prescribes the form of
notice to be used for the purposes
of s103(2) of the act.
Commencement: 30/12/2010
Land and Conveyancing Law
Reform Act 2009 (Section 108)
Regulations 2010
Number: SI 655/2010
Content: Prescribes the rate of
commission that may be retained
by a receiver out of any money
received as remuneration and in
satisfaction of all costs.
Commencement: 30/12/2010
Prepared by the
Law Society Library
Legislation update
Jan/Feb 2011
briefing
One to watch
One to watch: new legislation
Prevention of Corruption (Amendment) Act 2010
The Prevention of Corruption (Amendment) Act 2010
was signed into law on 15 December 2010. It amends
the Prevention of Corruption (Amendment) Act 2001,
giving fuller effect to the OECD Convention on the
Bribery of Foreign Public Officials in International
Business Transactions (1997). The act broadens the
scope of the corruption legislation, including the Public
Bodies Corrupt Practices Act 1889, the Prevention
of Corruption Acts 1906 and 1916, the Ethics in
Public Office Act 1995, the Prevention of Corruption
(Amendment) Act 2001, and the Proceeds of Crime
(Amendment) Act 2005.
Consideration or advantage
The act amends section 2(2) of the Prevention of
Corruption (Amendment) Act 2001, which states that
is an offence to “(a) corruptly give or agree to give, or
(b) corruptly offer, whether for the benefit of that agent
or another person, any gift or consideration.” The new
act adds the words “or advantage”, thereby extending
the scope of the offence.
Definition of ‘agent’
Section 2 of the act extends the categories of persons
who come within the definition of ‘agent’, to include:
• Any person employed by or acting on behalf of the
public administration of any state (other than the Irish
state), including a person under the direct of indirect
control of the government of any such state, and
• A member of, or any other person employed by or
acting for or on behalf of, any international organisation
established by an international agreement between
states, to which the Irish state is not a party.
The meaning of ‘corruptly’
The new act clarifies the meaning of ‘corruptly’,
stating that it includes “acting with an improper
purpose personally or by influencing another person,
whether by means of making a false or misleading
statement, by means of withholding, concealing,
altering or destroying a document or other information,
or by any other means.”
Extra-territorial jurisdiction
Section 7 of the 2001 act is amended by section 3 of
the new act, which extends the categories of persons
subject to extra-territorial jurisdiction to include:
a)An Irish citizen,
b)An individual who is ordinarily resident in the state,
c)A company registered under the Companies Acts,
d)Any other body corporate established under a law
of the state, or
e)A relevant agent in any case where the relevant
agent does not fall within any of paragraphs (a) to
(d).
Protection of whistleblowers
The 2001 act is amended by inserting a new section
8(A), which provides protection to persons (including
employees) reporting offences under the Prevention
of Corruption Acts 1889 to 2010. Section 8(A)
protects persons who make a communication of
his or her opinion regarding a suspected corruption
offence unless the report is made knowing it to be,
or reckless as to whether it was, false, misleading,
frivolous or vexatious. According to section 8(A)(5), an
employer shall not penalise or threaten to penalise an
employee for making a communication in good faith.
An employer who contravenes the act by penalising or
threatening to penalise a whistleblower shall be liable
on summary conviction to a fine not exceeding €5,000
or imprisonment for a term not exceeding 12 months
or both or, on conviction on indictment, to a fine not
exceeding €250,000 or imprisonment for a term not
exceeding three years or both.
Redress
The new act amends the 2001 act by inserting two
schedules, which provide protection and redress
for whistleblowers. Schedule 1 provides redress for
employees in the event of penalisation by employers
for whistleblowing. An employee may present a
complaint to a rights commissioner, whose decision
may in turn be appealed to the Labour Court.
Schedule 2 stipulates the provisions applicable
where a communication is made in good faith. G
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If you’re not receiving the e-zine, or have opted out
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51
52
Justis update
briefing
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Justis update
News of Irish case law information and legislation is available from FirstLaw’s current awareness service on www.justis.com
Compiled by Bart Daly
COMPANY
Administrator
Fees – costs – sanction – partner
hourly charge-out rate – reduction –
increase in fees – Insurance (No 2)
Act 1983 (as amended).
Pursuant to section 3(4)(b) of the
Insurance (No 2) Act 1983, the
court was obliged to fix the costs,
expenses and remuneration of
an administrator of an insurance
company, whom it had appointed to
that role. The legislature had given
no guidance as to how to apply
the criteria. The administrator
sought remuneration for the
first company, ESG, for the
sum of €386,646.25 and liberty
to pay his solicitors the sum of
€35,394.15 and, for the second
company, Accent, €222,680 and
€25,607.70 to pay his solicitors.
The administrator sought to
distinguish the function of
administrator from a receiver,
liquidator or examiner. The
businesses of the companies had
a combined balance sheet of $85
million. €450 per hour was sought
as a standard partner call-out rate.
Kelly J held that the
court would allow an hourly
charge-out rate of €375 for
a partner. The court held
that, in the case of ESG, the
fees would be reduced from
€386,646.25 to €302,238.95.
The administrator’s fees in the
case of Accent would be reduced
from €222,680 to €186,786.20.
€594.85 would be added in
expenses. The grand total for the
administrator’s fees, expenses
and charges was €496,619.99.
The legal costs for ESG were
reduced to €27,961.38, and in
the case of Accent they were
reduced to €20,230.09. Credit
would be given for payments
on account. As to the future,
the court was only prepared
to sanction further payments
without reference to the court at
the levels that the court had fixed
until 30 September 2011.
In Re ESG Reinsurance Ireland
Ltd, High Court, 2/11/2010
CRIMINAL
Drink driving
Criminal procedure – garda demand
– police powers – origin – lawful
demand – Road Traffic Act 1961,
as amended.
The case stated posed the question
of whether it was necessary to
imply into a road traffic power
to inspect insurance on a vehicle,
vested in the gardaí, a requirement
to tell the person against whom
it was exercised that the power
had a lawful origin and that
the consequence of failing to
cooperate was the commission of
an offence. The defendant had
been stopped by a garda while
driving, and the garda demanded
the production of a certificate of
insurance, and further demanded
that it be produced at a garda
station within two days. The issue
arose as to the necessity for the
demand of production in respect
of a prosecution pursuant to the
Road Traffic Act 1961, as amended.
The defendant argued that people
were entitled to know when they
were being subjected to police
powers.
Charleton J held that the
ordinary operation of law, and how
notorious parts of it may sometimes
generally be common currency,
may or may not, depending on the
assessment of the district judge,
lead to an inference that he had
already sufficient knowledge as to
the legal origin of a demand and
that a failure may result in the
commission of a criminal offence.
This was a matter for the trial
court. The court would answer the
questions of the district judge as
indicated.
DPP (Shortt) (prosecutor) v
Freeman (defendant), High
Court, 2/11/2010
IMMIGRATION AND ASYLUM
Judicial review
Deportation – Immigration Act
1999 – whether the grounds sought
to be raised by the applicant disclosed
any arguable case that the refusal
to revoke the deportation order
was unlawful having regard to the
changed circumstances in question.
The applicant applied ex parte
for leave to seek judicial review
of the respondent’s decision to
refuse an application made by the
applicant under section 3(11) of
the Immigration Act 1999 for the
revocation of a deportation order
that had been made in respect of
him previously. The applicant
arrived in the state from Kenya
and was refused both asylum
status and subsidiary protection.
The contested decision was
supported by a file note containing
an analysis of the application
made by the Repatriation Unit of
the
department
for
the
respondent’s recommendation,
and on which the decision was
based. The essential basis of the
application that the respondent
had a duty to consider was
that the applicant was in a
relationship with an Irish citizen
for two years, to whom he was
engaged and was expecting
a child. His partner also had
another child by another father,
and there was an insurmountable
obstacle to her joining the
applicant in Kenya on deportation
without the permission of that
child’s father. The grounds for
seeking leave were characterised
by the common assertion that
the decision was ultra vires,
arbitrary, irrational, unreasonable
and
disproportionate.
The
grounds emphasised at the
oral hearing were directed
particularly at the adequacy of
the decision’s assessment of the
applicant’s place in the family
unit, the claim that there was
an insurmountable obstacle to
that unit relocating together in
Kenya and, in particular, the
rights of the unborn child under
the Constitution and the European
Convention on Human Rights.
Cooke J refused the application
for leave, holding that, having
considered the grounds proposed
to be raised in the light of the
oral submissions, no arguable
case could be made out that the
contested decision, as explained
at length in the file note, did not
flow from its premise or flew in
the face of reason and common
sense. Each of the new facts and
changed circumstances relied
upon by the applicant was set out
and commented upon in detail in
the file note. Furthermore, the
right protected by article 40.3.3 of
the Constitution was the right to
life of the unborn child only. The
application for leave was based on
a misconception. The proposed
grounds were predicated on an
assumption that the respondent
was obliged under section 3(11) of
the act to reconsider the decision
to deport the applicant. However,
the only issue that can arise in
respect of a decision to refuse
revocation under section 3(11)
is whether, in the light of the
changed circumstances advanced
in the application to revoke, the
respondent erred in law or made
some material mistake of fact in
his decision to refuse revocation.
Kangethe (applicant) v Minister
for Justice and Law Reform
(respondent),
High
Court,
7/10/2010
TORT
Damages
Road traffic accident – soft-tissue
injuries – post-traumatic stress
disorder – whether disc prolapse
attributable to accident – whether
psychotic episode attributable to
accident – quantum – level of
damages recoverable.
The plaintiff was a 59-year-old
lady who received soft-tissue
injuries on 1 July 2005 when a
car collided head-on with her
car at a roundabout. Liability
was not in issue. She suffered a
fractured sternum and pain in her
neck and back, and the symptoms
continued for some months.
She also became depressed and
began to abuse alcohol. She was
diagnosed with post-traumatic
stress disorder. She also suffered a
disc prolapse some years later.
Law Society Gazette
www.gazette.ie
Mr Justice Peart held that the
plaintiff had not been consciously
and deliberately exaggerating her
difficulties in order to mislead the
court, and awarded her €75,000
in general damages for past pain
and suffering and €20,000 for
future pain and suffering. The
plaintiff’s back pain was clinically
established and explained by
the evidence of disc protrusion
and the degenerative changes
in her lumbar spine. However,
the plaintiff’s disc prolapse was
not attributable to the accident.
Damages to which the plaintiff was
entitled included the whiplashtype injury to her neck, her
fractured sternum and recovery
period, her depression, anxieties
around traffic and post-traumatic
stress disorder from which she
had substantially recovered, her
unwillingness to drive a car, as well
as her soft-tissue injury to her back.
Excluded from consideration for
damages was the onset of alcohol
abuse, the psychotic episode and
the disc prolapse.
Jan/Feb 2011
Justis update
briefing
Donovan (plaintiff) v Farrell
(defendant),
High
Court,
4/12/2009
Practice and procedure
Dismissal for inordinate and
inexcusable delay – whether the
inordinate and inexcusable delay of
the parties rendered it improbable
that a fair adjudication of this matter
could not take place.
The first defendant applied to
have the plaintiff’s case against
him struck out for inordinate and
inexcusable delay. The litigation
arose from a collision between a
motorcycle and a tractor in 1994,
and the plenary summons issued
in 1996. The plaintiff was a pillion
passenger on the motorcycle
being driven by the first-named
defendant and, as a result of the
accident, he sustained serious
injuries, including the loss of his
leg. The first defendant was initially
convicted of dangerous driving
before the District Court but, on
appeal in 1995, was convicted of
careless driving only. The first
defendant never filed a defence
to the plaintiff’s claim, despite the
plaintiff’s motion for judgment
in default being struck out and
time allowed for late filing. The
first defendant maintained that,
in or around January 2005, it was
indicated to him that the case was
being withdrawn, and allegations
were made that the plaintiff later
informed the defendant that
he was not pursuing his claim.
In November 2006, the first
defendant was involved in a serious
road traffic accident, resulting
in the loss of one of his legs.
He suffered reactive depression
and was in constant pain. In
November 2008, the plaintiff
served a notice of intention to
proceed. The defendant was later
hospitalised in 2009 with severe
physical and psychiatric injuries.
The defendant also previously
discontinued his case against the
driver of the tractor involved in
the collision.
Charleton J dismissed the
application,
holding
that,
although there was inordinate
and inexcusable delay in this case,
that delay was not one-sided.
There was default by both parties.
However, the ultimate test with a
delay of this magnitude was as to
whether a fair adjudication could
nonetheless take place. The first
defendant had suffered a serious
injury since the incident that
was the subject matter of these
proceedings. However, the clear
recording of his instructions
at the time of the criminal
proceedings and the inferences
that the court must make that
his solicitors recorded his
instructions, made it improbable
that a fair adjudication of this
matter could not take place.
Any memory loss or inability to
concentrate was not proved. No
costs were awarded arising out of
this application, due to the fault
of both parties in delaying this
action.
Kelly
(plaintiff)
v
Doyle
(defendant),
High
Court,
23/11/2010 G
NOTICE
Solicitors Acts 1954 to 2008 (Sixth Schedule) Regulations 2001 –
SI no 604 of 2010
Solicitors Acts 1954 to 2008 (Fees) Regulations 2001 – SI no 605 of 2010
The combined effect of the abovementioned statutory instruments,
which came into operation on 1
February 2011, is to authorise
the charging by the Law Society
of the fees set out in the schedule
below. The Law Society may, at
its discretion in any individual
instance, waive in whole or in part
the fees specified in respect of any
one or more of the applications
referred to in the schedule.
File A and File B are provided for
under section 17 of the Solicitors
(Amendment) Act 1960. File
A contains orders striking the
name of a solicitor off the Roll of
Solicitors or suspending a solicitor
from practice, made by the High
Court under specified sections of
the Solicitors Acts. File B contains
certain other orders made under the
Solicitors Acts, including certain
orders made by the High Court.
Nature of application
Specified fee per
application
Application for a copy of an entry in File A or File B:
€100
Application for a certificate of good standing or a certificate of standing:
€100
Application for details of any indemnity insurance maintained by a solicitor or firm of solicitors pursuant to section 26 of the Solicitors (Amendment) Act 1994 and regulations made thereunder:
€100
Application for a duplicate practising certificate:
€50
Application for information relating to a solicitor or firm of solicitors which requires a search in archived records:
€100
53
54
Eurlegal
briefing
Law Society Gazette
www.gazette.ie
Jan/Feb 2011
Edited by TP Kennedy, Director of Education
ECJ upholds fine for abuse of dominant position
Last October, the European
Court of Justice rejected an appeal
against the 2008 decision of the
European Court of First Instance
(now the General Court) upholding the European Commission’s
earlier finding that Deutsche
Telekom AG (DT) had abused
its dominant position contrary to
article 82 of the EC Treaty (now
article 102 of the Treaty on the
Functioning of the European Union,
or TFEU). In its judgment, the
ECJ addresses key issues arising
from the interplay between EU
competition rules and national
regulatory frameworks. The court
also considers whether a margin
squeeze constitutes a stand-alone
abuse of a dominant position.
Abuse of a dominant position
Article 102 prohibits the abuse of
a dominant position in the EU (or
in a substantial part of it) that may
affect trade between EU member
states. Accordingly, in order to
establish that a company has infringed article 102, one must first
establish that this undertaking has
a dominant position. A dominant
position is defined as a position of
economic strength that allows a
company to hinder effective competition being maintained on the
relevant market by allowing it to
behave, to an appreciable extent,
independently of its competitors, customers and, ultimately,
consumers. Dominance per se is
not illegal. However, dominant
companies are under a special responsibility not to hinder effective
competition in the marketplace.
Article 102 contains a non-exhaustive list of various types of abusive
conduct. These include the imposition of unfair purchase prices or
other trading conditions and the
limitation of markets to the prejudice of consumers.
Factual background
DT is the incumbent telecommunications company in Germany
and operates the fixed-line telephone network in that country.
DT’s local networks consist of sale local loop access services and
various physical circuits connect- for retail end-user access services,
ing a customer’s home or premises it had a dominant position in both.
with its fixed-line network. These Between 1998 and 2001, DT’s
circuits are usually referred to as wholesale prices for accessing the
the ‘local loop’. As part of the EU- local loop were more expensive
led liberalisation of telecommuni- than charges to its direct retail
cations services, DT was required, customers.
In 2002, notwithstanding an
with effect from the mid ’90s, to
offer access to the local loop. Such increase in its retail tariffs, the
access is essential to any company spread between DT’s wholesale
wishing to compete in down- and retail prices was insufficient
stream markets. The wholesale to cover the product-specific costs
and retail prices that DT charges of providing its own retail access
for such access are subject to a services.
In its decision adopted in May
strict regulatory regime. The then
German regulatory authority for 2003, the European Commission
telecommunications and postal considered that DT had abused its
services, RegTP, was required to dominant position because there
set DT’s wholesale access charges. was an insufficient margin between its wholeRegTP was also
sale prices for
obliged to apaccess to the local
prove DT’s retail
“The ECJ’s judgment
loop and its retail
access prices folprices for endlowing authorisais also of major
user access sertion applications
importance to
vices. This marby this company.
participants in any
gin squeeze hindered an ‘as-effiCommission
regulated sector,
cient’ competitor
decision
such as gas,
from
competIn 1999, 15 of
ing with DT
DT’s market ritransport, electricity
for the provivals
submitted
and postal services”
sion of end-user
complaints to the
access services.
European ComThe commission
mission, claiming that the prices DT was charg- found that the spread between
ing for wholesale access were so DT’s prices was abusive if a marexpensive that, in order to avoid ket rival, assuming it had DT’s
losses, they were forced to charge costs and had to pay DT’s wholetheir own subscribers more than sale prices, was unable to compete
DT charged its own retail custom- with DT’s retail prices without
ers. Thus, even if its competitors selling below cost.
The commission did not find
are at least as efficient as DT, it is
impossible for them to be profit- that DT’s wholesale prices were
able in the provision of retail ac- too high; instead, it felt that this
cess services. Competitors could company’s retail prices were too
theoretically offset their losses on low (that is, the latter did not
such access services by charging cover DT’s costs.) Accordingly,
higher prices for telephone calls; DT could have increased its retail
however, this was practically im- charges in order to reduce or elimpossible against a background of inate the abusive margin squeeze
of its ‘as-efficient’ competitors.
falling call charges.
In its ensuing investigation, The commission thus found that
the commission found that, given DT had abused its dominant posiDT’s monopoly/virtual monopoly tion and imposed a fine of €12.6
in the German markets for whole- million.
General Court’s judgment
DT appealed the commission’s
decision to the General Court on
various grounds. In rejecting the
appellant’s argument that, since
RegTP had approved its prices,
article 102 should not apply, the
General Court stated that the
German regulator’s function was
not to examine EU competition
issues. The General Court also
considered that, since the abuse
consisted of the unfairness of the
spread between wholesale and retail prices, the commission was not
required to demonstrate that DT’s
retail prices were, in themselves,
abusive. In essence, the General
Court found that, irrespective of
the decisions of RegTP, DT had
genuine scope to increase its retail
prices for access services, thus reducing the margin squeeze. Moreover, DT must have been aware
that its pricing policies were anticompetitive. In April 2008, the
General Court thus rejected DT’s
appeal in its entirety.
Grounds of appeal
DT appealed the General Court’s
decision to the ECJ on two key
grounds. Firstly, it challenged the
manner in which the regulation of
its activities by RegTP was considered. DT felt aggrieved that its
pricing strategies, while seen as
abusive by the General Court and
the commission, had previously
been approved by its national
regulator. Secondly, DT argued
that the General Court and the
commission incorrectly applied
article 102. More particularly, DT
argued that a margin squeeze test
is unsuitable to establish abuse in
a situation where wholesale access charges are imposed by the
relevant national regulator, in this
case, RegTP.
DT’s first ground of appeal focused on whether it was responsible for infringing article 102
where its pricing practices were
approved by RegTP.
According to settled European
case law, EU competition rules
Law Society Gazette
www.gazette.ie
will not apply to the behaviour
of an undertaking: (i) provided
the anti-competitive conduct is
required by national legislation,
or (ii) if national law creates a
legal framework that eliminates
any possibility of competition. In
such situations, the restriction of
competition is not attributable to
the independent behaviour of the
relevant undertaking. The ECJ
has consistently interpreted these
exclusions from the scope of EU
competition rules very narrowly.
If national rules merely encourage or make it easier for dominant
undertakings to engage in autonomous anti-competitive conduct,
those companies remain subject to
article 102.
DT argued that, since its pricing strategies had been approved
by RegTP under a legal framework geared towards competition,
its duty to preserve the structure
of the market is supplanted by
the responsibility of the regulator. Rejecting this argument, the
court noted that, while RegTP is
the German body responsible for
the telecommunications sector, it
does not have competence for the
enforcement of EU competition
law. Indeed, DT should be aware
that German telecommunications
regulation and EU competition
law are separate legal instruments.
For instance, the former provides
for ex ante regulation, whereas the
latter contains rules for ex post review. DT should seek to respect
both regimes. Moreover, the ECJ
considered that nothing in German telecommunications regulatory rules prevented DT from adjusting its prices for end-user access services by making the appropriate authorisation applications
to RegTP. Accordingly, the court
found that the fact that RegTP
had encouraged DT to maintain
potentially abusive pricing practices does not, in itself, exclude the
application of article 102.
DT also argued that RegTP’s
decisions created a legitimate expectation that the relevant pricing
practices were lawful. However,
the court held that this argument
implicitly relies on the hypothesis
Eurlegal
Jan/Feb 2011
briefing
of the exclusionary effect it could
create for competitors who were,
at least, as efficient as DT. There
was therefore no need to consider
whether either DT’s wholesale or
retail prices were in themselves
abusive.
Dominant positions and competition are not always incompatible
that the commission should follow
RegTP’s assessment. However,
the European courts have consistently held that the commission
is not bound by the decision of a
national body pursuant to article
102. Therefore, RegTP’s decisions could not create a legitimate
expectation that DT’s conduct was
lawful.
Is the margin squeeze abusive?
As mentioned above, the commission found that DT’s abuse consisted of the margin squeeze of its
‘as-efficient’ competitors due to
the unfairness of the spread between its wholesale prices for local
loop access services and its retail
prices for end-user access services.
DT challenged the relevance of
the margin squeeze test for the
purposes of establishing abuse under article 102, since it would have
had to increase its retail prices for
end-user access services in order
to avoid this squeeze.
In general terms, it is abusive
for a dominant company to hinder
competition or the growth of competition on any market on which
it is active. The ECJ recalled that
article 102 expressly prohibits a
dominant undertaking from directly or indirectly imposing unfair prices. Moreover, a dominant
company must not adopt pricing
practices that are capable of either
making market entry very difficult
or impossible for its competitors
or limiting the choice of supply
open to customers.
The ECJ noted that DT did
not challenge the possibility that
the spread between its wholesale
prices for local loop access services and its retail tariffs for enduser access services was capable
of having an exclusionary effect.
This margin squeeze made the
access of competitors to downstream markets more difficult,
thus diminishing competition and
ultimately reducing the prospect
of long-term reductions in retail
prices. The ECJ found that the
fact that DT would be required
to raise its retail prices in order
to avoid the margin squeeze did
not take its conduct outside the
scope of article 102. The ECJ
also dismissed DT’s argument
that, since the relevant wholesale
prices were set by RegTP, the
margin squeeze test was not appropriate on the basis that DT’s
abuse arose from the unfairness
of the spread between its relevant
prices and not the prices themselves. The ECJ thus upheld the
General Court’s finding that the
margin squeeze, resulting from
the spread between DT’s wholesale and retail prices, was capable
of constituting an abuse within
the meaning of article 102 in view
‘As-efficient competitor’ test
The purpose of the ‘as-efficient
competitor’ test is to ensure that
a dominant undertaking cannot
drive an undertaking from the
market that is ‘as efficient’ but,
because of its inferior financial
resources, is incapable of withstanding the competition waged
against it. DT argued that this
test should be adjusted to take
account of the differing regulatory and competitive situations
of its market rivals. Referring to
the principle of legal certainty,
the court responded that, given
the special responsibility of dominant companies, they should be in
a position to assess the lawfulness
of their pricing practices, including whether their conduct is likely
to exclude competitors in breach
of article 102. This must be done
on the basis of their own costs,
since they could not be expected
to know their respective competitors’ costs and charges. The ECJ
thus confirmed that the General
Court and the commission were
entitled to rely on the ‘as-efficient
competitor’ test in order to determine whether the margin squeeze
was abusive.
Actual effects must be shown
The ECJ upheld the General
Court’s rejection of the commission’s argument that it was unnecessary to demonstrate any
anti-competitive effect of DT’s
conduct. In this case, the commission was required to show that the
margin squeeze of DT’s ‘as-efficient’ competitors created barriers
for the growth of products in the
retail market for end-user access
services. The court found that a
margin squeeze is not abusive if it
does not make market penetration
more difficult. The ECJ approved
the General Court’s view that
the spread between the relevant
55
56
Eurlegal
briefing
wholesale and retail prices hindered the growth of competition
in the latter, since an ‘as-efficient’
competitor could not compete in
the retail market for end-user access services without incurring
losses. Indeed, the ECJ found that
the small shares acquired by DT’s
competitors in the German market for end-user access services
show the anti-competitive effect
of the margin squeeze.
Wider implications
The ECJ’s judgment is of major
significance to the enforcement
of abuse of dominance rules by
the European Commission and
the various national competition
authorities. The court’s rejection
of DT’s appeal recognises, for the
first time, a margin squeeze as a
stand-alone abuse of a dominant
position. (This test was also set out
in the commission’s recent guid-
ance on the enforcement of article
102.) In particular, the ECJ stated
that the ‘as-efficient competitor’
test is the correct method for deciding whether a margin squeeze
infringes article 102. This test
should allow a dominant company
to assess whether its behaviour is
lawful, since it obviously knows its
own costs. This does not require
a dominant company to speculate whether actual or potential
competitors with differing cost
structures would be excluded by
its pricing practices, as would be
required under the ‘reasonably efficient competitor’ test.
The ECJ’s judgment is also
of major importance not only to
telecommunication
companies
and regulators but also to participants in any regulated sector, such
as gas, transport, electricity and
postal services. The court’s judgment shows that national sectoral
Law Society Gazette
regulation does not preclude the
application of EU competition
rules. In addition, the court left
open the issue of whether Germany (through RegTP) may have
infringed EU law in authorising
DT’s unlawful pricing practices.
This may have resulted in the
commission launching proceedings against Germany for its failure to fulfil its treaty obligations.
Accordingly, regulatory bodies
must be mindful of the impact of
articles 101 and 102 of the TFEU.
Regulated companies should
also pay attention to EU competition rules. Indeed, the court
held that, even if ex ante national
regulatory rules encourage a company to act in a particular manner,
this will not absolve that company
from its responsibilities under articles 101 and 102. Accordingly,
regulated companies may be required to act in a manner inconsis-
www.gazette.ie
Jan/Feb 2011
tent with their national regulatory
framework in order to comply
with EU competition rules. The
need to ‘second guess’ its respective national regulatory regime is
likely to cause significant practical difficulties for any regulated
body, particularly a dominant
undertaking. On the other hand,
it is perhaps welcome that a regulator’s view may be challenged by
the European Commission or any
national competition authority
of an EU member state. Finally,
companies seeking to obtain access to regulated assets/networks
might consider using EU competition law, since these rules may
provide access rights that are not
obtainable under national regulatory rules.
Cormac Little is a partner in the
Competition and Regulation Unit of
William Fry, Solicitors.
Recent developments in European law
FAMILY LAW
On 20 December 2010, the council adopted regulation 1259/2010
on enhanced cooperation in the
area of divorce and legal separation (Rome III). The regulation
will apply to the 14 member states
that participate in enhanced cooperation (this does not include
Britain or Ireland). The new regulation sets out choice-of-law rules
to be applied in divorce or legal
separation cases.
FREE MOVEMENT OF GOODS
Case C-108/09, Ker-Optika bt v
ÁNTSZ Dél-dunántúli Regionális Intézete, 2 December 2010
Hungarian legislation provides
that the selling of contact lenses
requires a specialist shop with a
minimum area of 18 square metres
or premises separated from the
workshop. To sell contact lenses,
the services of an optometrist or
an ophthalmologist qualified in
the field of contact lenses must be
used. The Hungarian firm KerOptika sells contact lenses on its
website. The Hungarian health
authorities prohibited it from pur-
suing that activity on the ground
that, in Hungary, those products
could not be sold via the internet.
Ker-Optika brought a court action
challenging that prohibition. The
Hungarian court asked the Court
of Justice whether the Hungarian
legislation was in compliance with
EU law. The Court of Justice noted that the prohibition in Hungary on selling contact lenses via the
internet applied to the supply of
contact lenses from other member
states to customers in Hungary.
It significantly impedes the access of non-Hungarian suppliers
to the Hungarian market. Thus,
it is an obstacle to free movement
of goods in the EU. The court
found that a member state may
impose a requirement that contact
lenses are to be supplied by qualified staff capable of providing the
customer with information on
the correct use and care of those
products and on the risks associated with wearing lenses. Thus,
the Hungarian legislation is appropriate to secure the objective
of protecting the health of consumers. Those services can also be
provided by ophthalmologists in
places other than optician’s shops.
These services are generally only
required on the first occasion
when contact lenses are supplied.
When lenses are supplied subsequently, it is sufficient that the
customer advise the seller of the
type of lenses that were provided
when first supplied and inform the
seller of any change in his vision
as measured by an ophthalmologist. The additional information
and advice required for prolonged
use of contact lenses can be given
to the customer by using the interactive feature on the supplier’s
website or by a qualified optician
designated by the supplier as able
to provide that information at a
distance. Thus, the court ruled
that the objective of ensuring protection of the health of the users
of contact lenses can be achieved
by measures that are less restrictive than those provided for under
the Hungarian legislation.
INTELLECTUAL PROPERTY
Case C-235/09, DHL Express
(France) SAS v Chronopost SA,
opinion of Advocate General
Cruz Villalón, 7 October 2010
The Trademark Regulation (40/94)
provides for a uniform intellectual
property right effective throughout the entire area of the EU. One
tier of its system of specialised jurisdiction was the establishment
of ‘community trademark courts’.
These are a limited number of
national courts of first and second instance designated by each
member state that decide disputes
between private parties. In the
context of that system, the national courts act as special courts
of the EU. Where the community
trademark courts find an infringement or a threatened infringement of a community trademark,
they are to issue an order prohibiting the infringer from proceeding with the acts that infringed
or would infringe the community
trademark. They may also take
such measures in accordance with
their national law as are aimed at
ensuring that the prohibition is
complied with. Chronopost SA is
the proprietor of the French and
community trademarks ‘Web-
Law Society Gazette
www.gazette.ie
shipping’, relating, in particular,
to services for the collection and
delivery of mail. After the registration of those marks, DHL Express
(France) SAS used the same word
for an express mail management
service accessible principally via
the internet. In 2007, a regional
court in Paris, acting as a community trademark court, declared
that there had been trademark infringement, prohibited DHL from
a continuing infringement, and
imposed a financial penalty should
it fail to comply with the prohibition. DHL appealed the ruling to
the Cour de Cassation. Chronopost also appealed, contesting the
effects of the ruling being limited
to France. The Cour de Cassation
made a reference to the Court of
Justice for a ruling to ascertain the
territorial scope of the prohibition
issued by a community trademark
court and of the coercive measures
adopted in order to ensure that
the prohibition is complied with.
The advocate general considered
that, in principle, a prohibition issued by a national court acting as
a community trademark court has
effect as a matter of law throughout the entire area of the EU.
The purpose of the regulation is
to enable a trademark proprietor
to apply to a single court in order
to bring acts of infringement to
an end in several member states.
The declaration of infringement
relates to a trademark granted by
the EU, whose judicial protection
is entrusted to special national
courts of the EU and therefore,
in principle, the declaration has
effect throughout the entire area
of the EU. Where the infringement or action for infringement
is limited to a specific geographical or linguistic area, the court’s
order is limited territorially. The
Jan/Feb 2011
territorial scope of the prohibition
corresponds, in principle, to the
scope of the infringement. The
advocate general considered that
the coercive measures have effect
within the territory in which the
declaration of infringement was
made and the prohibition issued.
The quantification and enforcement of those measures take place
at a later stage, when, if the prohibition has been infringed, the
penalty is applied. The court that
has imposed the periodic penalty
payment will have jurisdiction as
regards its quantification and enforcement only where the prohibition is infringed in the member
state of that court. Where the
prohibition is infringed in another
member state, quantification and
enforcement will be a matter for
the court of that member state.
The court of the member state
in which the penalty has been
infringed is obliged to recognise
the effects of the period penalty
payment imposed by the community trademark court of the other
member state, in accordance with
the rules on recognition laid down
by the Brussels I Regulation. Such
measures must be adjusted to the
specific features of each legal system. The court of the member
state in which the prohibition has
been infringed, if its national law
so permits, is simply to recognise
the order and apply the period
penalty payment to the specific
case. By contrast, if its national
law does not provide for such a
measure, it must achieve enforcement in accordance with its own
national provisions.
REFUGEE STATUS
Joined cases C-57/09 and
C-101/09, Germany v B, Germany v D, 9 November 2010
Eurlegal
briefing
Directive 2004/83 EC lays down
minimum standards for conditions to be met by third-country
nationals or stateless persons in
order to receive international
protection. It provides for the
exclusion of a person from refugee status where there are serious
reasons for considering that he
has committed a “serious nonpolitical crime” or has been guilty
of “acts contrary to the purposes
and principles of the United Nations”. B and D are Kurds who
hold Turkish nationality. B had
supported the armed guerrilla
activity of the DHKP/C and D
was a guerrilla fighter and senior
official in the PKK. Both these
organisations were on a list drawn
up by the EU of persons, groups
and entities involved in terrorism.
D had been granted refugee status
by Germany and B had applied for
asylum. Both stated that they has
left these organisations and now
feared persecution from both the
Turkish authorities and their respective organisations. The German authorities rejected B’s application and revoked the refugee
status that had been granted to D.
A German court asked the Court
of Justice to interpret the clauses
in the directive under which a
person is excluded from refugee
status. The CJ held that exclusion
from refugee status of a person
who has been a member of a terrorist organisation is conditional
on an individual assessment of the
specific facts. The mere fact that
the person concerned has been
a member of such an organisation cannot automatically mean
that the person must be excluded
from refugee status. The circumstances in which an organisation
was placed on the list of terrorist
organisations cannot be assimi-
lated to the assessment of specific
facts in the case of an individual.
Participating in the activities of a
terrorist group does not, in itself,
trigger the automatic application
of the exclusion clauses in the directive. To justify a finding that
the grounds for exclusion apply,
it must be possible for the competent authority to attribute to the
person concerned a share of individual responsibility for the acts
committed by the organisation in
question while that person was a
member. The competent authority is required to assess a number
of factors: the true role played by
the person concerned in the perpetration of terrorist acts; his position within the organisation; the
extent of the knowledge he had, or
was deemed to have, of its activities; any pressure to which he was
exposed; or other factors likely to
have influenced his conduct. If a
competent authority finds that the
person concerned has occupied a
prominent position within a terrorist organisation, it is entitled to
presume that that person has individual responsibility for acts committed by that organisation during
the relevant period. It is still necessary to examine all the relevant
circumstances before a decision
excluding that person from refugee status can be adopted. Exclusion from refugee status pursuant
to one of the exclusion clauses
concerned is not conditional upon
the person concerned representing a present danger to the host
member state. The penalty element of the exclusion clause is intended for acts committed in the
past. There are other provisions in
the directive that allow the competent authorities to take the necessary measures where a person
represents a present danger. G
consult a colleague 01 284 8484
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WILLS
Byrne, Bridget (deceased), late
of Tara Winthrop Nursing Home,
Swords, and 73 Villa Park Gardens,
Navan Road, Dublin 7, who died on
11 December 2010. Would any person
having knowledge of any will executed
by the above-named deceased please
contact Brid O’Dwyer, solicitor, Frank
Ward & Co, Solicitors, Equity House,
Upper Ormond Quay, Dublin 7; tel:
01 873 2499, fax: 01 873 3484, email:
brid@frankward.com
Conlon, Bridget (deceased), late of
30 Ellesmere Avenue, North Circular
Road, Dublin 7, who died on 9 March
1998. Would any person having
knowledge of the whereabouts of the
original will, dated 25 August 1994,
or any other will made by the abovenamed deceased, please contact Pearse
Mehigan & Company, Solicitors,
83/84 Upper Georges Street, Dun
Laoghaire, Co Dublin; tel: 01 280
8292, fax: 01 280 8651, email: gregflanagan@pearsemehigan.com
Carthy, Frank (deceased), late of
Crow Street, Gort, in the county of
Galway. Would any person having
knowledge of the whereabouts of
a will executed by the above-named
deceased on 24 October 1997, who
subsequently died on 23 July 2001,
please contact Twomey Scott &
Co, Solicitors, 80 O’Connell Street,
Limerick; tel: 061 316 456, fax: 061
316 567, email: dscott@twomeyscott.
com
Conlon, Michael (deceased), late of
30 Ellesmere Avenue, North Circular
Road, Dublin 7. Would any person
having knowledge of a will executed
by the above-named deceased, who
died on 19 March 2006, please contact Pearse Mehigan & Company, Solicitors, 83/84 Upper Georges Street,
Dun Laoghaire, Co Dublin; tel: 01
280 8292, fax: 01 280 8651, email:
gregflanagan@pearsemehigan.com
Carty, Patrick (otherwise Carthy) (deceased), late of 98 Ashfield,
Mullingar, Co Westmeath, and formerly of Wooddown, The Downs,
Mullingar, Co Westmeath, who died
on 28 December 2010. Would any
person having any knowledge of the
whereabouts of a will executed by
the above-named deceased please
contact John Wallace of NJ Downes
& Co, Solicitors, Dominick Street,
Mullingar, Co Westmeath; tel: 044
934 8646, fax: 044 934 3447, email:
john@njdownes.ie
Corish, John Francis (deceased),
late of 61 The Way, Hunter’s Run,
Clonee, Dublin 15, who died on 31
December 2010. Would any person
having knowledge of the whereabouts
of a will executed by the above-named
deceased please contact Mary Morrissey of Morrissey & Co, Solicitors, Lismard House, Bridge Street,
Tullow, Co Carlow; tel: 059 915 2910,
fax: 059 915 2163, email: postmaster@
morrisseycosolicitors.ie
Cummins, Patrick (deceased), late
of Farnamanagh, Cashel, Co Tipper-
ary, who died on 2 September 2010.
Would any person having knowledge
of the whereabouts of a will executed
by the above-named deceased please
contact John Whelan of Matthew
MacNamara & Son, Solicitors, Friar
Street, Cashel, Co Tipperary; tel: 062
61110, email: macnamaraandson@eircom.net
Kelly, Emer (deceased), late of 33
Kerrymount Rise, Foxrock, Dublin
18, who died on 6 September 2010.
Would any person having any knowledge of the whereabouts of a will executed by the above-named deceased
please contact Rochford Gibbons, Solicitors, 16/17 Upper Ormond Quay,
Dublin 7; tel: 01 872 1499, fax: 01 872
1654, email: info@johnrochford.ie
Killian, Mary Josephine (deceased),
late of The Beeches, Coosan, Athlone,
Co Westmeath. Would any person
having knowledge of a will executed
by the above-named deceased, who
died on 9 December 2009, please contact Mark Cooney, Solicitors, 5 Garden Vale, Athlone, Co Westmeath;
tel: 090 647 7718, fax: 090 645 0570,
email: info@markcooney.ie
Laverty, Frankie (Francis) (deceased), late of Stranorlar, Co Donegal, who died on 21 August 2010.
Would any person having knowledge
of the whereabouts of a will made by
the above-named deceased please contact MM Mulrine & Co, Solicitors,
Ballybofey, Co Donegal; tel: 074 913
1608
www.gazette.ie
Jan/Feb 2011
McInerney, Monica (deceased), late
of Clenagh, Newmarket-on-Fergus,
Co Clare, who died on 4 November 2010. Would any person having
knowledge of the whereabouts of a
will executed by the above-named deceased please contact Lorraine Burke
of Desmond J Houlihan & Company,
Solicitors, Salthouse Lane, Ennis,
Co Clare; tel: 065 684 2244, email:
lburke@djhoulihan.ie
McQuillan, Francis (otherwise
Frank) (deceased), late of Knockataggart, Stradone, Co Cavan, who
died on 5 October 2010. Would any
person having any knowledge of a will
made by the above-named deceased
please contact Joanne Kangley, Solicitors, Anne Street, Bailieborough, Co
Cavan; tel: 042 966 6741, fax: 042 966
5988, email: reception@kangley.ie
McQuillan, Annie (otherwise
Anna) (deceased), late of Knockataggart, Stradone, Co Cavan, who
died on 18 October 1990. Would any
person having any knowledge of a will
made by the above-named deceased
please contact Joanne Kangley, Solicitors, Anne Street, Bailieborough, Co
Cavan; tel: 042 966 6741, fax: 042 966
5988, email: reception@kangley.ie
McSwiney, Katryn (deceased), late
of 54 Barra Glas, Crobally Upper,
Tramore, Co Waterford, who died on
29 October 2010. Would any person
having knowledge of the whereabouts
of a will made by the above-named
deceased please contact Raymond
Glynn & Co, Solicitors, 27 O’Brien
Street, Mallow, Co Cork; tel: 022
22285, fax: 022 42415
Marnell, Timothy (Tim) (deceased), late of Killough, Templemore, Co Tipperary. Would any
person having knowledge of a will
made by the above-named deceased,
who died on 6 October 2010, please
contact James J Kelly & Son, Solicitors, Patrick Street, Co Tipperary; tel:
0504 31278, fax: 0504 31983, email:
info@jjkellylaw.ie
Murray, Ciaran (deceased), late of
Herbertstown, Naas, Co Kildare, who
died on 13 June 2010. Would any person having knowledge of the where-
Law Society Gazette
www.gazette.ie
abouts of the original will executed
by the above-named deceased on 21
March 1986, or any other will, please
contact Ivan Feran, Feran & Co, Solicitors, Constitution Hill, Drogheda,
Co Louth; DX 23001; tel: 041 983
1055, fax: 041 983 9104, email: ivanferan@feran.ie
Ryan, Mary Margaret (deceased),
late of 70 Ballynetty Road, Ballyfermot, Dublin 10. Would any person
having any knowledge of wills made
by the above-named deceased, who
died on 14 April 1983, please contact
Patrick W McGonagle, solicitor, of
Patrick W McGonagle & Co, 3 North
Street, Swords, Co Dublin; tel: 01 840
4697, fax: 01 840 1161, email: pat@
mcgonaglesolicitors.ie
Ward, Michael (deceased), late of
174 East 85 Street, New York, USA,
and formerly of Fenagh, Co Leitrim
and Castleknock, Dublin 15. If anyone knows of the whereabouts of a will
made by the above-named deceased,
who died on 1 August 2010, please
contact: anitaneville@eircom.net, tel:
086 102 6463
MISCELLANEOUS
MacGowan, Cyrill (otherwise Cyrill Smith) (deceased), late of 82 Abbeyfield, Killester, Dublin 5. Would
any person having knowledge of a wife
named Molly or a child named Yoko or
any other relative or next-of-kin of the
above-named deceased, who died on
Jan/Feb 2011
28 August 2008, please contact Lorna
Shannon, Gaffney Halligan & Co,
Solicitors, 413 Howth Road, Dublin
5; tel: 01 831 4133, fax: 01 831 4908,
email: ishannon@gaffneyhalligan.com
Seven-day liquor licence required.
Contact: Rory Deane & Co, Solicitors, Temple House, Templeshannon,
Enniscorthy, Co Wexford; tel: 053 913
6622
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Busy established practice,
Eastern region, requires purchaser or partner for heavy workload. Replies to box 01/11/01
TITLE DEEDS
In the matter of the Landlord and
Tenant Acts 1967-2005 and in the
matter of the Landlord and Tenant
Professional notices
notices
(Ground Rents) (No 2) Act 1978 and
in the matter of an application by
Joseph O’Reilly
Any person having any interest in the
fee simple estate or any intermediate
interest in all that and those the hereditaments and premises known as 59
Moore Street, in the parish of Saint
Mary and city of Dublin, being part
of the property comprised in folio
DN117599L and held under a lease
dated 13 July 1802 from Robert Burton to Thomas Trilly for a term of
999 years from 1 May 1802, subject
to the yearly rent of £18.20 sterling.
Take notice that Joseph O’Reilly,
being the person entitled to the lessee’s interest in the said lease, intends
to apply to the Dublin County Registrar at Áras Uí Dhálaigh, Inns Quay,
Dublin 7, for the acquisition of the
fee simple estate and all intermediate interests in the said property, and
any party asserting that they hold the
fee simple or any intermediate interest in the aforesaid property is called
upon to furnish evidence of their title
thereto to the undermentioned solicitors within 21 days from the date of
this notice.
In default of any such notice being
received, the said Joseph O’Reilly intends to proceed with the application
before the said county registrar at the
end of 21 days from the date of this
notice and will apply to the said registrar for such directions as may be appropriate on the basis that the person
or persons beneficially entitled to all
superior interests up to and including
the fee simple in the said property are
unknown and unascertained.
Date: 4 February 2011
Signed: William Fry (solicitors for the
applicant), Fitzwilton House, Wilton
Place, Dublin 2
In the matter of the Landlord and
Tenant Acts 1967-2005 and in the
matter of the Landlord and Tenant
(Ground Rents) (No 2) Act 1978 and
in the matter of an application by
Joseph O’Reilly
Any person having any interest in the
fee simple estate or any intermediate
interest in all that and those the hereditaments and premises known as 55
Moore Street, in the parish of Saint
Mary and city of Dublin, comprised
in folio DN118022L, held for a term
of 999 years, less the last three days
thereof, from 1 January 1874 under
the leasehold interest created by a
mortgage debenture dated 4 September 1990 from Eastdean Limited to
Irish Intercontinental Bank Limited,
being a sub-demise under a lease dated 3 March 1875 from Robert William Burton to William Brunton for
the full term of 999 years from 1 January 1874 aforesaid, which reserved a
yearly rent of £35 sterling.
Take notice that Joseph O’Reilly,
being the person entitled to the said
subleasehold interest, intends to apply to the Dublin County Registrar at
Áras Uí Dhálaigh, Inns Quay, Dublin
7, for the acquisition of the fee simple
Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland
Regulated by the Solicitors Regulation Authority of England and Wales
59
James MacGuill wins
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Court of Human Rights
working abroad
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winning ways
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top gong at national
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Gazette
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Law Society Gazette • Vol 105 No 1
jim’ll fix it!
€3.75 jan/feb 2011
jaN/feb 2011
Whose copy of the
Gazette are you reading?
the biG chiLL
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Buying
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Contact
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Professional notices
Jan/Feb 2011
estate and all intermediate interests
in the said property, and any party asserting that they hold the fee simple
or any intermediate interest in the
aforesaid property is called upon to
furnish evidence of their title thereto
to the undermentioned solicitors
within 21 days from the date of this
notice.
In default of any such notice being received, the said Joseph O’Reilly
intends to proceed with the application before the said county registrar
at the end of 21 days from the date of
this notice and will apply to the said
registrar for such directions as may
be appropriate on the basis that the
person or persons beneficially entitled to all superior interests up to
and including the fee simple in the
said property are unknown and unascertained.
Date: 4 February 2011
Signed: William Fry (solicitors for the
applicant), Fitzwilton House, Wilton
Place, Dublin 2
In the matter of the Landlord and
Tenant Acts 1967-2005 and in the
matter of the Landlord and Tenant (Ground Rents) (No 2) Act 1978
and in the matter of an application
by Joseph O’Reilly
Any person having any interest in
the fee simple estate or any intermediate interest in all that and those
that portion of 70 Parnell Street,
job-seekers’
register
notices
Dublin 1, comprising part of folio
DN186723F, the subject of a lease
for lives dated 10 March 1774 from
James Higgins to Mary Johnston,
which reserved a perpetual yearly
rent of £30, now €38.09.
Take notice that Joseph O’Reilly,
being the person entitled to the lessee’s interest in the said lease, intends
to apply to the Dublin County Registrar at Áras Uí Dhálaigh, Inns Quay,
Dublin 7, for the acquisition of the
fee simple estate and all intermediate interests in the said property, and
any party asserting that they hold the
fee simple or any intermediate interest in the aforesaid property is called
upon to furnish evidence of their title
thereto to the undermentioned solicitors within 21 days from the date
of this notice.
In default of any such notice being
received, the said Joseph O’Reilly intends to proceed with the application
before the said county registrar at the
end of 21 days from the date of this
notice and will apply to the said registrar for such directions as may be appropriate on the basis that the person
or persons beneficially entitled to all
superior interests up to and including
the fee simple in the said property are
unknown and unascertained.
Date: 4 February 2011
Signed: William Fry (solicitors for the
applicant), Fitzwilton House, Wilton
Place, Dublin 2
In the matter of the Landlord and
Tenant Acts 1967-2005 and in matter of the Landlord and Tenant
(Ground Rents) (No 2) Act 1978
and in the matter of an application
by Ann Taylor of ‘Grouville’, 70
Monkstown Avenue, Monkstown,
Co Dublin
Take notice that any person having
any interest in the fee simple or any
superior or intermediate interest in
the following properties (or either of
them): (a) part of the lands of Ashton
Park, Monkstown Avenue, in the parish of Monkstown, barony of Rathdown and county of Dublin, with
the substation erected thereon, held
under an indenture of sublease dated
24 February 1955 and made between
Ashton Estates Limited (1) and the
Electricity Supply Board (2) for a term
of 100 years from 1 February 1955 and
subject to the yearly rent of one shilling and the covenants and conditions
therein contained; and (b) the lands at
Ashton Park, Monkstown Avenue, in
the county of Dublin, with the building erected thereon, held under an
indenture of sublease dated 17 April
1959 and made between Ashton Estates Limited (1) and Frederick Taylor
(2) for a term of 899 years from 1 September 1951 and subject to the yearly
rent of one pound and the covenants
and conditions therein.
Take notice that the applicant,
Ann Taylor, being the person entitled
legal
vacancies
For Law Society members seeking a solicitor
position, full-time, part-time or as a locum
For Law Society members to advertise for all
their legal staff requirements, not just qualified
solicitors
Log in to the members’ register of the Law Society
website, www.lawsociety.ie, to upload your
CV to the self-maintained job seekers
register within the employment
section or contact career
support by email on
careers@lawsociety.ie or
tel: 01 881 5772.
Visit the employment section on the Law Society
website, www.lawsociety.ie, to place an ad or
contact employer support by email on
employersupport@lawsociety.ie
or tel: 01 672 4891. You
can also log in to the members’
area to view the job seekers
register.
61
62
Professional notices
notices
to the lessee’s interest in both of the
above-mentioned leases, intends to
submit an application to the county
registrar for the city of the county
of Dublin for the acquisition of the
freehold interest and all intermediate interests (if any) in the aforesaid
properties, and any party asserting
that they hold a superior interest
in the aforesaid properties is called
upon to furnish evidence of title to
the aforementioned properties to the
undermentioned within 21 days from
the date of this notice.
In default of any such notice being received, Ann Taylor intends to
proceed with an application before
the said county registrar to acquire
the freehold interest and all intermediate interests (if any) in each of the
aforesaid properties on the expiry of
21 days from the date of this notice
and will apply to the said county registrar for such directions as may be
appropriate on the basis that the person or persons beneficially entitled
to the superior interest(s) including
the freehold reversion in each of the
aforesaid properties are unknown or
unascertained.
Date: 4 February 2011
Signed: William J Brennan & Company
(solicitors for the applicant), 33 Upper
Merrion Street, Dublin 2
In the matter of the Landlord and
Tenant Acts 1967-2005 and in the
matter of the Landlord and Tenant
(Ground Rents) (No 2) Act 1978 and
in the matter of the application
by Joseph Power and in the matter of the premises situate at and
known as 133 North Strand Road,
Dublin 3
Take notice that Joseph Power intends
to submit an application to the county
registrar for the city of Dublin for the
acquisition of the freehold Interest
in the property known as 133 North
Strand Road, Dublin 3, and any party
asserting that they hold the superior
interest in the aforesaid property is
called upon to furnish evidence of title
to the aforementioned property to the
below-named solicitors within 21 days
from the date of this notice. The said
premises are held under an indenture
of lease made 13 July 1938 (hereinafter called ‘the lease’) and made between Jane Nestor of the one part and
Patrick O’Neill of the other part for a
term of 100 years from 1 June 1938,
subject to the yearly rent of 84 pounds
and to the covenants and conditions
contained, which said property is part
of the lands demised by a superior
lease dated 12 April 1880, and made
between Michael O’Brien of the one
part and John Condon of the other
part for a term of 500 years from 1
May 1880, subject to the rent of nine
pounds, six shillings per annum and
to the covenants and conditions contained.
NOTICE TO THOSE PLACING
RECRUITMENT ADVERTISEMENTS
IN THE LAW SOCIETY GAZETTE
Please note that, as and from the August/September
2006 issue of the Law Society Gazette, NO
recruitment advertisements will be published that
include references to years of post-qualification
experience (PQE).
The Gazette Editorial Board has taken this decision
based on legal advice, which indicates that such
references may be in breach of the Employment
Equality Acts 1998 and 2004.
Law Society Gazette
In default of such notice being received, the said Joseph Power intends
to proceed with the application before the county registrar at the end of
21 days from the date of this notice
and will apply to the county registrar
for the city of Dublin for directions
as may be appropriate on the basis
that the person or persons beneficially entitled to the superior interest
including the freehold reversion in
the aforesaid property are unknown
or unascertained.
Date: 4 February 2011
Signed: Richard Dennehy & Co (solicitors for the applicant), 189a Botanic
Road, Glasnevin, Dublin 9
RECRUITMENT
Apprenticeship sought by well-educated and experienced PPCI trainee
solicitor, to commence April 2011.
Intelligent and reliable individual
with a strong work ethic. Significant
experience attained in legal practice.
Corporate Solicitor
Prestigious City Centre Practice requires
Corporate Solicitor for their well-established
and expanding Corporate Department.
Seeking a focused and ambitious Solicitor
with 3-4 years Corporate Experience and
interested in developing a client base.
Excellent opportunity for career progression
and superb package on offer for the ideal
candidate.
www.gazette.ie
Jan/Feb 2011
CV and references available upon request. Available to attend interview
to demonstrate competence. Tel: 087
634 0296
Partnership Opportunity
Young, energetic and
highly motivated solicitor
with good experience and
solid business acumen
seeks opportunity to
become involved in an
established firm in the
Mid West region. May suit
sole practitioner or firm in
need of modernisation.
Email in strict confidence:
midwestfirm@gmail.com
or call (087)6211574
In-House Legal Advisor
Commercially focused Legal Advisor
required for a leading Asset Management
Company based in Dublin City.
The ideal candidate will have in-house
experience (3-4 years) gained in Financial
Services and deep knowledge of regulatory
and compliance issues surrounding Investment Schemes. An additional language will
be a distinct advantage.
For further details on these and more
excellent opportunities contact Linda
Evans on 01 500 5907 or email
linda.evans@careers-register.com
LegaL editor
This is a uniquely exciting opportunity for a dynamic
individual interested in a career in legal publishing.
You will be responsible for identifying publishing opportunities, working
with relevant departments to develop and launch a new range of services,
commissioning new content and working closely with the editorial team. You
will have editorial experience and knowledge of the legal profession, preferably
with a professional qualification in a relevant discipline. The ability to work
effectively with other departments within the business and with authors is key.
This is a good opportunity to join a major and growing publishing group, based in attractive offices
in Dublin city centre. To apply, please send a CV and covering letter, stating salary expectations, to
Sandra Mulvey, Publishing Manager, at sandra.mulvey@bloomsburyprofessional.com
Closing date: 21 February 2011
Opportunities in Guernsey
“I wanted to move somewhere that guaranteed
the quality of work that the City of London
provided and also offered an excellent lifestyle.
Guernsey was the answer.”
Christopher Jones, previously with Cleary Gottlieb Steen & Hamilton in London,
joined Ogier in 2010
Ogier, one of the leading offshore law and fiduciary firms, are looking
to meet corporate and banking/finance lawyers who might be interested
in a career move to Guernsey. Representatives from Ogier will be in Dublin
at the end of the month.
If you would like to be considered or to find out more, please contact
our exclusive recruitment consultant Mark Walters on
+44 (0)20 7415 2828 or email markwalters@taylorroot.com
All third party and direct applications will be sent to and dealt with by Taylor Root.
www.ogier.com
Bahrain • British Virgin Islands • Cayman Islands • Guernsey
Hong Kong • Ireland • Jersey • London • Tokyo
Position available
Want to
place your
recruitment
advertisement
here?
Contact Seán ó hÓisín
Tel: 01 8375018
Mobile: 086 8117116
Email: sean@lawsociety.ie
64
Law Society Gazette
Captain’s blawg
www.gazette.ie
Jan/Feb 2011
wild, weird and wacky stories from legal ‘blawgs’ and news media around the world
Snappy days
Judges in ‘top ten’ list of jobs with no future!
If you’re intent on becoming a
judge in the US (and here, you
might ask), you might want to
think again. CBS Moneywatch has
compiled a list of the ‘top ten’
high-paying jobs with no future –
and judges are in pole position!
The list is based on the US
Bureau of Labor Statistics’ (BLS)
Occupational Outlook Handbook.
The bureau predicts that budget
cuts will lead to a loss of 700 jobs
for judges, magistrate judges,
and magistrates by the end of
2018. The agency also notes that
turnover is slow, with the average
tenure spanning 14 years. BLS
researcher Tamara Dillon says:
“Years ago, some judges left to
become general counsel in the
private sector, where they could
triple their salary, but since the
economic downturn, they’re
staying longer on the bench.”
Also on the list of high-paying
jobs with no future are: fashion
It’s a steal
As many as 76% of employees
have stolen from their place
of work, according to a recent
survey conducted by office design
company Maris Interiors. Men are
particularly light-fingered, with
an astonishing 82% admitting to
helping themselves, compared
with 71% of women surveyed.
The stationery cupboard was
hardest hit, with pens (60%) and
printer paper (42%) being the
most common items pilfered.
Stamps (31%), mugs (28%) and
toilet paper (24%) were also
frequently taken. The stapler –
often thought of as a frequent
target of office thieves – was
‘only’ taken by 6% of those
surveyed.
One in 20 employees admitted
to having taken more valuable
designers, insurance underwriters,
travel agents, newspaper reporters
and broadcast announcers.
Lawyers didn’t make the list.
According to the BLS report,
job growth for lawyers is projected
to be 13% between 2008 and
2018, about as fast as the average
for all occupations. The report
notes that lawyers are increasingly
finding work outside of law firms
in areas where legal training is an
asset, rather than a requirement.
Parents should be free to
photograph their children in
school or nativity plays and
challenge schools or councils
that try to stop them under
data protection laws. That’s
according to Britain’s information
commissioner, Christopher
Graham, as reported in the
Belfast Telegraph. Shots for the
family album are exempt from
the laws, and parents and friends
of children in plays should stand
ready to challenge any schools or
councils on the matter.
“Having a child perform at a
school play or a festive concert is
a very proud moment for parents
and is understandably a memory
that many want to capture on
camera. It is disappointing to hear
that the myth that such photos are
forbidden by the Data Protection
Act still prevails in some schools.
Clearly, photographs simply taken
for a family album are exempt
from data protection laws.”
Daniel Hamilton, campaign
director of civil liberties campaign
group Big Brother Watch, said
the information commissioner’s
statement was “a real victory for
common sense”.
Jailhouse rocks
items – ranging from printer toner
to laptops. More unusual items
declared included chairs and office
plants, even filing cabinets, carpet
tiles and entire desks.
And yes, we’ve lifted this story
– but just can’t remember from
where!
A California lawyer’s claim that
jailhouse sex was consensual
and lasted no more than “an
hour’s total duration” shows he
still doesn’t get it and should be
disbarred, a Californian state
court judge held, and the state
supreme court agreed.
The respected ABA Journal
reports that, according to an
order in early December, the
State Bar of California would
disbar Patrick Earl Marshall
(63) from 1 January 2011.
Marshall, who had sex
with two incarcerated female
clients at the San Benito County
Jail while he was working as
a contract public defender,
failed to recognise that it is
impossible for a client in this
situation to consent to sex,
according to an opinion by
State Bar Court Judge Lucy
Armendariz. Likewise, “having
improper sexual relations
with a client breaches the
basic notions of trust and
integrity and endangers
public confidence in the legal
profession, irrespective of its
duration”.
The Hollister Free Lance
says the incidents at issue date
back to 1995. The suspension,
followed by a two-year period
of probation, was successfully
appealed by the prosecution,
resulting in Marshall’s
disbarment.
www.benasso.com
Remaining the number one Irish legal recruitment consultancy takes a dogged
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New Openings
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Private Practice
Banking - Associate to Senior Associate:
First rate law firm seeking a strong Banking lawyer with
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Private Practice
Commercial Litigation – Associate: Central Dublin practice is looking for a strong practitioner with an
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Banking – Senior Associate: A well respected Dublin practice is seeking a strong Banking lawyer
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Funds specialists
Commercial
Property
–
Partner:
Leading
Dublin
practice
is
seeking
an
ambitious
practitioner
will advise investment managers, custodians, administrators and other service providers of investment
fundswith
on
strong management
to supervise a dedicated team dealing with a range of commercial property
establishing
operations skills
in Ireland.
In
House
matters including assisting corporate clients with property affairs to include long and short term leases,
Funds - Assistant to Senior Associate : International law firm recently established in Dublin is searching
Senior
Legal
Advisor:
client
is searching
a issues
senior
solicitor
or barrister
with expertise in equity
disposals
etc.
Also,
NAMA Our
enforcement
and property
on support
transactions.
for
ambitious
commercially-minded
practitioners
withfor
strong
exposure
to investment
funds.
capital markets, corporate finance, mergers and acquisitions or general corporate practice advising Irish or UK
listed companies.
In House
Corporate/Commercial – Senior Associate: Our client is a major Dublin City law firm with a
Telecoms
- Junior Solicitor
Barrister:
Our clientand
is searching
for acorporate
junior solicitor
or barristerand
to
first class reputation.
You will beordealing
with mergers
acquisitions,
restructurings
work
with
a
growing
team.
You
will
be
dealing
with
a
variety
of
Telecoms
related
matters.
This
is
a
new
role
Senior
Legal Advisor:
Our client
is searching
for a senior solicitor
or barrister with expertise in equity
re-organisations
of large blue-chip
domestic
and international
organisations.
which
people
skillsmergers
and business
acumen. Fluency
in corporate
Spanish ispractice
an essential
pre-requisite.
capitalrequires
markets,strong
corporate
finance,
and acquisitions
or general
advising
Irish or UK
listed companies.
Partnership
Funds – Senior Associate: A top flight firm is seeking an experienced asset management and
Telecoms - Junior Solicitor or Barrister: Our client is searching for a junior solicitor or barrister to
investment
fundsthe
lawyer.
Thewill
department
iswith
involved
in setting
up and
servicing
investment
funds
Our
leading
law
rms. Signifi
cant
opportunities
exist
in
the
following
and
ain
workclients
with ainclude
growing
team.
YouIrish
be fidealing
a variety
of Telecoms
related
matters.practice
This isareas
a new
role
Ireland
for international
and skills
domestic
will have
a strong
academic
coupled with
client
following
isstrong
not essential.
which
requires
people
and clients.
businessYou
acumen.
Fluency
in Spanish
is background
an essential pre-requisite.
first class technical
and be
expected; Regulatory/Compliance
to market the firm’s services
to existing
and potential clients.
Employment
; Funds ;skills
Insolvency
; Litigation
; Environmental
& Planning
Partnership
Our clients include the leading Irish law firms. Significant opportunities exist in the following practice areas and a
client following is not essential.
For more information on these or other vacancies, please
Employment ; Funds ; Insolvency ; Litigation ; Regulatory/Compliance ; Environmental & Planning
visit our website or contact Michael Benson bcl solr. in strict
confidence at: Benson & Associates, Suite 113,
The Capel Building, St. Mary’s Abbey, Dublin 7.
TFor
+353
1 670 3997
E mbenson@benasso.com
more(0)
information
on these
or other vacancies, please